Raj Bharat (Migration)

[2019] AATA 4590

Raj Bharat (Migration) [2019] AATA 4590 (5 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Raj Bharat
Mrs Rajni Bala
Master Garv
Miss Kritika

CASE NUMBER:  1827399

DIBP REFERENCE(S):  BCC2018/1909472

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 September 2019 at 3:54 pm (VIC time)

DATE OF WRITTEN RECORD:                18 September 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal remits the decisions under review

with the direction that the applicant satisfies cl.190.214.

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) – Subclass 190 Skilled Nominated – did not have 60 points – satisfied requirement of 60 points – no jurisdiction in relation to other applicants – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 94(1), 338
Migration Regulations 1994 (Cth), Schedule 2 cl 190.214(2)

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 August 2018 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (the Act).

2. At the hearing on 5 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Bharat, the Tribunal does not grant visas, it is not what we do. We review decisions of the Department to refuse visas. If we agree with the delegate’s finding that an applicant does not satisfy the requirements, we send the application back to the Department advising that we the decision under review. If we find that an applicant does satisfy the requirements that the delegate found they did not satisfy, we send it back for reconsideration with the direction that the applicant does satisfy the specific requirement which is not to be reconsidered.

4. I am going to remit this matter to the department, which means I am going to send it back to them and tell them that you do satisfy the requirements. However, as I warned you, flagged with you at the start section 347(2) of the Act specified who has the right to apply for review of a decision that is reviewable under part 5 of the Migration Act.

5. And in the case of a dispute a decision described in section 338(7)(a), which is what your case is, an application to review can only be made by a non-citizen who is the subject of the decision and who is physically present in the migration zone, which means Australia, when both the primary decision and the application for review are made.

6. Because your wife and children were not in the migration zone at either of those occasions, when the primary decision was made or the application for review was made the Tribunal does not have jurisdiction in their cases and so I make this decision relative to you and you alone.

7. You first came to Australia on 15 November 2010 as the holder of a 456 Business Short Stay visa. You were subsequently granted a number of subclass 600 Visitor visas and you have been a regular visitor to Australia in that period. You lodged an application for a subclass 190 Skilled Permanent visa on 1 May 2018. Your application was refused on 31 August 2018 because the delegate found you did not meet clause 190.214(2) of Schedule 2 to the Regulations.

8. To be eligible for the grant of a Skilled Subclass 190 visa, applicants must satisfy a range of criteria set out in the Regulations. The Act provides a points system under which applicants for skilled visas are given and assessed a point score based on points prescribed for particular attributes. The required level of points is set from time to time by the Minister.

9. Subsection 94(1) of the Act provides that an applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received a qualifying score.

10. Reading from the primary decision your assessed score on 31 August 2018 is 45 and a qualifying score is 60 points, therefore you have not met the legislative requirements for the grant of a visa. As you have not satisfied clause 190.214(2) of schedule 2 to the Regulations your application has not been assessed against the remaining criteria for a subclass 190 visa.

    Case Number 1827399  Page 2 of 4

1. The delegate was not satisfied that the evidence provided entitled you to any points for the work experience that you have done overseas and therefore refused the application. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

2. As I said, the role of the Tribunal is to take a fresh look at your application and consider whether or not you meet the requirements for the grant of a subclass 190 skilled permanent visa.

3. Going through and looking at the points that you have scored at the date of the invitation, which was 17 April 2018, you were 36 years old and therefore awarded 25 points for that criterion. You provided a Pearson English Test in which you scored an overall score of 53, which means you have competent English, which means you scored zero for English.

4. Education qualifications, you have completed a Bachelors degree being a Bachelor of Arts from Guru Nanak Dev university, which the primary decision accepts, and accordingly 15 points were awarded under that criterion.

5. You were invited for this subclass 190 visa. The nomination from Victoria has not been withdrawn and so 5 points were awarded for that criterion.

6. Part 6D of the Regulations specifies the point system that’s relevant to the overseas employment experience. Part 6D(3) relates to the overseas experience gained in working in your nominated skilled occupation or a closely related skilled occupation for a period of time in the 10 years immediately before the date of the invitation to apply for a visa.

7. You have told the Tribunal and you have provided evidence that you have worked in your father’s business since 2004. That business is a manufacturing business in India and you have provided evidence and today a range of photographs detailing the scope of that business. You have provided evidence that you have been the production manager in that business since 2004 until now.

8. Your invitation for this visa was issued on 17 April 2018. And so you have provided

   evidence that for the 10 years immediately before that period you have been engaged as the production manager in this business.

9. You have told the Tribunal convoluted stories about the structure of the business and your becoming a partner, however it is a business that your father started back in 1998 and it has been going continuously since then.

10. The Tribunal heard today from a witness Mr Ross Faulkner of Faulkner Sporting Goods here in Australia. The Tribunal notes that Faulkner Sporting Goods is a long established, highly regarded supplier of sporting goods and apparel in Australia. Mr Faulkner provided evidence that he and a number of his staff have visited your premises on a number of occasions. He advised that your business is one of their key suppliers and he attests to the fact that you have been operating, as you say, that this business does do as you say and despite the fact that we might look at it and question whether a business of this dimension could churn out sufficient product to require a production manager he says “I can assure you everything that Mr Bharat tells you is true”.

11. I find the evidence of Mr Faulkner compelling because his business is a very well regarded, long term established business in Australia and he is a man of considerable reputation in his industry, which is also part of your industry, and so I take his evidence as the truth.

Case Number 1827399  Page 3 of 4

1. It is that evidence of Mr Faulkner that persuades me that you have been working as a production manager in your father’s business, which is the nominated skilled occupation for which you have applied for this visa.

2. I therefore find that you have at the time of invitation to apply been employed outside Australia in your skilled occupation for a period totalling at least 96 months and therefore you are eligible to be granted 15 points for that criterion .

3. That means that in total you satisfy the requirement by achieving a minimum of 60 points.

4. As you achieve 60 points I am satisfied that you meet clause 190.214. It is therefore my intention to remit this matter to the department with the instruction that you do satisfy clause 190.214 and that matter is not to be reconsidered. They will reconsider anything else that they need to reconsider.

5. The decision of this Tribunal is that the matter be remitted to the department with the direction that you do satisfy clause 190.214.

   DECISION

6. The Tribunal remits the decisions under review with the direction that the applicant satisfies cl.190.214.

   Tim Connellan
   Member

Case Number 1827399  Page 4 of 4