Rodrigues (Migration)

[2019] AATA 290

Rodrigues (Migration) [2019] AATA 290 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Naiana Cristina Rodrigues
Mr Felipe San Giovani Figueiredo

CASE NUMBER:  1609350

HOME AFFAIRS REFERENCE(S):           BCC2015/2502298

MEMBER:C. Packer

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 07 February 2019 at 4:54pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visas – Subclass 189 (Skilled – Independent) – points based visa – occupation of Systems Analyst – skills assessment – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 359, 360, 363
Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016 Part 6D
Migration Regulations 1994, Schedule 2, cls 189.214, 189.311; Schedule 6D, rr 1.15, 2.26

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 Immigration and Border Protection on 6 June 2016 to refuse to grant the applicants visas under s.65 of the Migration Act 1958 (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 (the applicant) was invited to apply for the visa on 6 July 2015 and applied for the visa on 28 August 2015. 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 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

3. On 16 January 2019 the Tribunal wrote to the review applicants pursuant to s.359 of the Act, inviting them to provide information about their assessment of their assessed score under Schedule 6D of the Regulations (the prescribed points and the manner of their allocation), together with reasons and supporting information.

4. 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 30 January 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information 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.

5. The review applicants have not provided the information within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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 (r.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).

10. 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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Systems Analyst.

    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

11. 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

12. 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.

13. The applicant’s IELTS test result dated 14 March 2015 showed she gained:

Test component	Score
Listening Band	8.5
Reading Band	8.5
Writing Band	7.0
Speaking Band	7.0

1. The applicant has not gained an IELTS test score of at least 8 for each of the four test components and therefore does not meet the requirements for superior English as defined in r.1.15EA (20 points). The applicant gained an IELTS test score of at least 7 for each of the four test components and therefore meets the requirements for proficient English as defined in r.1.15D (10 points): 6D22.

2. Therefore, the applicant is entitled to 10 points under this part.

   Part 6D.3 – Overseas employment experience qualifications

3. 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 at least 36, 60, or 96 months in the 10 years immediately before that time.

4. The applicant’s Australian Computer Society (ACS) skills assessment dated 16 December 2014 stated in part:

   Your skills have been assessed to be suitable for migration under 261112 (Systems Analyst) of the ANZSCO Code.

   Your qualification has been assessed as follows:

   Your Bachelor of Computer Science from Universidade Estadual Paulista completed July 2010 has been assessed as comparable to an AQF Bachelor Degree with a major in computing.

   The following employment after July 2010 is considered to equate to work at an appropriately skilled level and relevant to 261112 (Systems Analyst) of the ANZSCO Code.

   Dates: 05/07 - 12/12 (5yrs 7mths)
   Position: System Analyst
   Employer: Sprint-Nextel
   Country: BRAZIL

5. I have considered but do not accept the submission of the representative and applicant that in fact she completed her degree in 2008. I find that the ACS skills assessment shows the applicant completed her Bachelor of Computer Science in July 2010. The delegate’s decision confirmed that the applicant’s academic records, uploaded 11 September 2015, showed a completion date of 6 July 2010. Indeed, page 3 of the degree document (English translation) provided by the applicant shows the degree was awarded after completion of the final subject Supervised Internship or Graduation Paper over one term with a 240 hour load in 2010 and this provided 16 credits. There is no evidence before the Tribunal that at least five years of relevant experience and/or relevant vendor certification substituted for her formal qualification.

6. I find the applicant was skilled from July 2010 and she had been employed in Brazil in her nominated skilled occupation of System Analyst, only from the time she completed her Bachelor of Computer Science in July 2010. I find that the applicant entered Australia on 31 January 2012 and the representative submits that effectively her overseas employment ceased on that date. I find, therefore, that the applicant had been employed by IBM in the skilled occupation of System Analyst, only from July 2010 to January 2012, which was a period of about 19 months. I find she had not been employed in the nominated skilled occupation or a closely related occupation, for a period totalling at least 36 months.

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

   Part 6D.4 – Australian employment qualifications

8. 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time. The application shows the time of invitation was 6 July 2015. In the application the applicant stated she had employment in Australia at Viva Energy Australia as a Help Desk Specialist from 14 July 2014 to 13 August 2014. She indicated she had not been employed in Australia in the nominated occupation or a closely related skilled occupation at a skilled level immediately before lodging the application. 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

9. 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. 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

10. 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 at least 12 months in the immediately preceding 48 months. However, the applicant has not claimed to have a completed a relevant professional year and there is no evidence before the Tribunal that she completed a relevant professional year. Therefore, the applicant is entitled to no points under this part.

    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 r.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 application shows the highest recognised qualification obtained by the applicant is a Bachelor of Computer Science. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

12. 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 r.1.15F of the Regulations. To meet the 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.

13. The applicant entered Australia on 31 January 2012 and she was invited to apply for the visa on 6 July 2015. However, her application did not show completed Australian studies, and on 24 May 2016 the representative advised that she did not complete her Australian studies to be able to meet 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

14. 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. However, her application does not show she had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language, and there is no evidence before the Tribunal that she has a relevant qualification. 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 qualifications

15. 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 r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. However, the Australian study requirement had not been met by the applicant at the time of invitation. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner Skill Qualifications

16. Five 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. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under a specified age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

17. In the application the applicant indicated she did not claim any partner skills points. On 24 May 2016 the representative advised the applicant’s partner had completed a Certificate III in Hospitality and an Advanced Diploma in Hospitality, but had not completed the Bachelor degree in Tourism and Hospitality. However, the applicant does not claim, and there is no evidence before the Tribunal, that at the time the applicant was invited to apply for the visa, the partner: had nominated a skilled occupation specified at that time under r.1.15I(1)(a); had been assessed as having suitable skills for the occupation by a relevant assessing authority. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

18. 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 area sponsorship qualifications

19. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - 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

20. 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  10 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.8 - Australian study  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  55 points

21. The applicant’s assessed score under the points system is therefore 55 points.

22. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore not achieved the qualifying score to pass the points test at the time of the delegate’s assessment.

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

23. At the time of the Tribunal’s decision the pass mark was 60 points: Legislative Instrument IMMI 18/067. Part 6D.7A (Specialist educational qualifications) was added to the regulations with effect from 10 September 2016 by the Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016. As the primary decision was made before that time I have considered Part 6D.7A at the time of the Tribunal’s decision. However, the applicant does not meet the requirements of Part 6D.7A and receives no points.

24. The applicant has therefore not achieved the qualifying score to pass the points test at the time of the Tribunal decision.

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

25. It is also a requirement that the applicant’s score 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 60 points. On the basis of the point’s assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.

    Conclusion

    For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    Findings in relation to secondary applicant

26. The secondary applicant is required to meet the criteria in cl. 189.311, which provides that the secondary applicant is a member of the family unit of a person who holds a subclass 189 visa, granted on the basis of satisfying the primary criteria, and further that the secondary applicant made a combined application with that person.

27. The Tribunal finds that the secondary applicant is not a member of the family unit of a person who holds a subclass 189 visa in accordance with the subregulation and does not meet the criterion. As the secondary applicant does not meet the criterion in cl. 189.311, the secondary applicant does not meet the requirements for the visa.

    DECISION

28. The Tribunal affirms the decision not to grant the visas.

    C. Packer
    Member