Salarmehr (Migration)

[2020] AATA 4134

Salarmehr (Migration) [2020] AATA 4134 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Reza Salarmehr

CASE NUMBER:  1829377

HOME AFFAIRS REFERENCE(S):          BCC2018/2233196

MEMBER:Jennifer Cripps Watts

DATE:23 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

·cl.189.224 of Schedule 2 to the Regulations.

Statement made on 23 September 2020 at 3:15pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Software Engineer – ‘points test’ criterion – qualifying score – invitation score – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350, 360
Migration Regulations 1994 (Cth), r 2.26AC; Schedule 2, cl 189.224; Schedule 6D

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 (the delegate) on 21 September 2018 to refuse to grant the applicant a visa 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 applicant was invited to apply for the visa on 23 May 2018 and applied for the visa on the same date. 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 they were not satisfied the applicant did not satisfy the ‘points test’ criterion in cl.189.224.

3. On 14 September 2020, the applicant’s case was constituted to this member.  After reviewing the evidence on the Tribunal and Department files relating to the material issue on the review, the Tribunal considered it should decide the review in the applicant’s favour on the basis of the material before it:  s.360 of the Act.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case, which is the same determinative issue on which the visa was refused, 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’.

6. 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).

7. 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 18/051.  In the present case, the applicant nominated the occupation of Software Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 261313, Skill Level 1, who usually are expected to have a level of skill commensurate with a bachelor degree or higher qualification.

   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

8. 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.

9. At the time of invitation from the Minister to apply for the visa, on 23 May 2018, the applicant was 32 years of age. The Tribunal is satisfied the applicant was between 25 and 33 years at the time of invitation and is therefore entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

10. 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 applicant relied on his PTE English test for this Part.  The relevant legislative instrument specifies a minimum score of 65 for a PTE English test.  The applicant provided a PTE English language test dated 10 May 2018,  undertaken within the 3 year period before the day on which the Minister invited him to apply for the visa; he achieved an overall score of 75, and scores from 74 to 85 for the four individual components of Listening, Reading, Speaking and Writing.  The test was verified at the time of application.

11. The applicant’s English test result is recorded as ‘proficient’, as defined in r.1.15D of the Regulations.

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

    Part 6D.3 – Overseas employment experience qualifications

13. 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.

14. The applicant provided documents at the time of application indicating he had worked for Mehr Hezare Ahura in Iran from June 2006 to August 2016, and from January 2018 to June 2018 as a Software Engineer.  A work reference was provided and, in addition, a favourable skills assessment from Australian Computer Society (ACS), as specified in the relevant instrument for the nominated occupation, dated 18 September 2017 and valid for 24 months.  The applicant has provided the Tribunal with a further favourable skills assessment from ACS, dated 8 October 2018, also valid for 24 months; that is, to 8 October 2020.

15. On the basis of the evidence provided by the applicant, the Tribunal is satisfied that he was employed outside Australia in the nominated skilled occupation of Software Engineer (ANZSCO 261313).  Relying on and giving weight to the finding expressed in the ACS skills assessment in this applicant’s case, the Tribunal is satisfied that the applicant’s overseas employment, with Mehr Hezare Ahura, after June 2012, equates to work at an appropriately skilled level relevant to the nominated occupation of Software Engineer (ANZSCO 261313), or more than 60 months in the 10 years immediately before the date of the invitation to apply for the visa, 23 May 2018.

16. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 15 points under this part.

    Part 6D.4 – Australian employment qualifications

17. 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.

18. The applicant claimed, and provided evidence by way of work references from his employers, to support the claim, that he worked for:

    a.Screenrights in Australia, Senior PHP Developer, from 1 March 2017 to 3 November 2017; and

    b.Besoftware in Australia, Software Engineer, from 28 September 2016 to 27 February 2017.

19. The Tribunal has also had regard to the applicant’s favourable ACS skills assessment dated 8 October 2018.  The invitation to apply for the visa was made on 28 May 2018.  On the evidence, the Tribunal is satisfied the applicant has Australian employment experience in the nominated or closely related skilled occupation for at least 12 months in the 10 years immediately before the date of the invitation for the visa.  He was employed By Besoftware from 28 September 2016 to 27 February 2017 (5 months) and by Screenrights from 1 March 2017 to 3 November 2017 (8 months); a total of 13 months.

20. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.

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

21. 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.

22. The applicant’s combined points for the Part 6D.3 and 6D.4 employment experience is 15.  As this is less, and not more, than the required 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

23. 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.  The relevant legislative instrument is IMMI 12/029 which specifies the Professional Year Program for the purposes of the definition of ‘professional year’ in r.2.26AC(6) of the Regulations, relevant to this applicant’s nominated occupation, is the Professional Year Program provided by the ACS which is available to information technology graduates.

24. The applicant made no claim and provided no evidence indicating he completed a professional year.  Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

25. 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.

26. ACS is the relevant assessing authority, as specified in the IMMI 18/057.  The applicant holds a Bachelor of Information Technology Engineering from Azarbayjan Shahid Madani University which has been assessed, by ACS on 8 October 2018, as comparable to an AQF Bachelor Degree with a Major in computing.  The applicant also holds a Master of Information Technology Engineering from the same university that was assessed by ACS as comparable to an AQF Master Degree with a Major in computing.

27. On the basis of the favourable skills assessment by ACS, dated 8 October 2018, the Tribunal is satisfied that, at the time of the invitation, the applicant held an acceptable qualification that had been recognised by ACS.

28. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

29. Ten 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 r.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.

30. The applicant has made no claim and there is no evidence before the Tribunal that the applicant meets the Specialist educational qualifications requirement. 

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

    Part 6D.8 – Australian study qualifications

32. 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.

33. The applicant has made no claim and there is no evidence before the Tribunal that the applicant meets the Australian study qualifications requirement. 

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

    Part 6D.9 – Credentialled community language qualifications

35. 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.

36. There is reference on the Department file relating to the initial assessment of the visa application, undertaken on 13 September 2018, to the applicant having provided a letter indicating he is accredited by the (Australian) National Accreditation Authority for Translators and Interpreters (NAATI).

37. Therefore, the applicant is entitled to 5 points under this part.

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

38. 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 designated regional area. Distance education does not qualify as study for these purposes.

39. The applicant has made no claim and there is no evidence before the Tribunal that the applicant meets the study in a designated regional area requirement. 

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

    Part 6D.11 – Partner qualifications

41. Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de factor 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 / 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 / partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

42. An amendment commenced on 16 November 2019, makes points available under this part (6D112), including in circumstances where an applicant does not have a spouse or de facto partner.  This applies to all applications not finally determined by 16 November 2019.

43. The applicant did not have a spouse at the time of the invitation or visa application.  There is no evidence before the Tribunal that indicates the applicant has a spouse or de facto partner at the time of this decision.  However, the Tribunal was satisfied that the applicant would meet the invitation score without the need to consider Part 6D.11 and that the applicant would not need to give oral evidence.  If the applicant has no spouse or de facto partner, or does have a spouse or de facto partner as specified in 6D112 or 6D113 of Schedule 6 to the Regulations, he may be entitled to 5 or 10 points under this part.  However, as he already meets the invitation score, it is the Tribunal’s view that it was not necessary to raise the issue with him before this decision was made.

44. Therefore, in the circumstances, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

45. 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 entitled to no points under this part.

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

46. 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 entitled to no points under this part.

    Conclusion on points

47. 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  15 points

    6D.4 - Australian employment experience   5 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   0 points

    6D.9 - Credentialled community language   5 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  0 points

48. The applicant’s assessed score under the points system is therefore 80 points.

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

49. To meet cl.189.224(1), it is 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 75 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

    Qualifying score

50. To meet cl.189.224(2), the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act, must not be less than the qualifying score for that Subdivision.  At the time of the delegate’s assessment the pass mark for a Subclass 189 (SI) General Skilled Migration visa was 60 points.  As the Tribunal is satisfied the applicant has achieved not less than (75) the invitation score, the applicant has achieved the qualifying score to pass the points test.

51. The Tribunal is satisfied the applicant meets the requirements of cl.189.224(1) and cl.189.224(2) of Schedule 2 to the Regulations.

    Conclusion

52. For the above reasons, the applicant is entitled to a maximum of 80 points under the points test.  As the applicant’s score is above, and not less than, the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.189.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

1. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

   ·cl.189.224 of Schedule 2 to the Regulations.

   Jennifer Cripps Watts
   Member