SALVADOR LONGARELA (Migration) - [2017] AATA 433

SALVADOR LONGARELA (Migration) [2017] AATA 433 (23 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Maria Belen SALVADOR LONGARELA
CASE NUMBER:  1603748
DIBP REFERENCE(S):  BCC2016/221049
MEMBER:Wan Shum
DATE:23 March 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 23 March 2017 at 4:17pm
CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 – Points test – Industrial Engineer – Qualifying score 60 not attained
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96(2), 350
Migration Regulations 1994, Schedule 2, Schedule 6D, r.2.26AC, r 1.15, r 2.26AC(5), IMMI 16/060, IMMI 12/017
CASES
MIAC v Kamruzzaman (2009) 112 ALD 550
Seema v MIAC [2012] FCA 257
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 Immigration on 2 March 2016 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.
The applicant was invited to apply for the visa on 8 January 2016 and applied for the visa on 15 January 2016. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
It requires nomination of a skilled occupation and satisfaction of the ‘points test’, which essentially enables assessment of the applicant’s suitability for employment in that occupation in Australia. The applicant is claiming to have the necessary skills for the occupation of Industrial Engineer.
Following an assessment of the evidence provided, the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.
The applicant has sought review of that decision.
The applicant appeared before the Tribunal on 22 March 2017 to give evidence and present arguments.
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 (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SALVADOR LONGARELA (Migration) [2017] AATA 433
Case: [2017] AATA 433
Decision Date: 23 March 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189) by Salvador Longarela. The applicant sought review of a decision not to grant the visa, which was heard by the Tribunal.

The central legal issue before the Tribunal was whether the applicant met the points test criterion for the visa. This required the applicant's assessed score to be not less than the score stated in the invitation to apply and not less than the qualifying score, which was 60 points. The Tribunal also had to consider the applicant's nominated occupation of Industrial Engineer and the relevant points prescribed in Schedule 6D to the Regulations.

The Tribunal applied the provisions of the Act and the Regulations concerning the points test. It assessed the applicant's eligibility for points based on age, finding the applicant, aged 30 at the time of invitation, was entitled to 30 points. The Tribunal also considered the applicant's English language qualifications, examining the results of a Pearson Test of English (PTE) Academic test. However, the provided text does not detail the specific points awarded for English language proficiency or any other attributes.

Ultimately, the Tribunal concluded that the applicant was entitled to a maximum of 55 points under the points test. As this score was less than the qualifying score of 60, the applicant did not satisfy the criterion for the visa. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (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). The qualifying score at the time of the delegate’s assessment, and at the time of this assessment, is 60. The score in the invitation to apply for the visa was 60, based on the information provided in the expression of interest. 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 Industrial Engineer which is an occupation specified in the relevant Schedule of the IMMI 16/060. 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. At the time of invitation the applicant was aged 30. Therefore, the applicant is entitled to 30 points under this Part.Part 6D.2 – English language qualifications For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, she had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D). The applicant submitted the result of a Pearson Test of English (PTE) Academic test taken on 15 October 2015. The PTE Academic test taker score report indicates that the applicant obtained 71 in listening, 66 in reading, 72 in speaking and 72 in writing.

Decision

Reasons for decision

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.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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