Singh (Migration)

Singh (Migration) [2023] AATA 3050 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harinder Singh
Mrs Sharanjeet Kaur
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2110413
HOME AFFAIRS REFERENCE(S):          BCC2019/1417939
MEMBER:Peter Katsambanis
DATE:6 September 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:
·cl 190.214 of Schedule 2 to the Regulations.

In relation to the second named applicant, the Tribunal remits the application for a visa to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 06 September 2023 at 1:10pm
CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – first named applicant’s assessed score under the points system is therefore 65 points – first named applicant has achieved the score stated in the invitation to apply for the visa –decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cl 190.214
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 22 July 2021 to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas 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 first named applicant (the applicant) was invited to apply for the visa on 21 February 2019 and applied for the visa on 20 March 2019. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 - Skilled - Nominated 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 190.214.
The applicant appeared before the Tribunal on 6 September 2023 by video link to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Mr Ranjit Singh. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review by a registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 Motor Mechanic (General). He also provided a skills assessment for this occupation from Trades Recognition Australia.
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 31 years old. Therefore, the applicant is entitled 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 applicant provided the Department with a copy of his results in the Pearson Test of English Academic (PTE Academic) undertaken on 28 November 2018 in Australia. The applicant’s test results were as follows:
Listening – 69
Reading – 73
Speaking – 75
Writing – 87
As the applicant has a Pearson Test of English Academic (PTE Academic) score of at least 65 in each of the four test components of speaking, reading, writing and listening (as required by the applicable instrument), the Tribunal finds that the applicant has proficient English as defined in reg 1.15D (10 points).
Therefore, the applicant is entitled to 10 points 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 provided no evidence and has made no claims to either the Department or the Tribunal that he has any such relevant experience or that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal and 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 applicant has claimed that he is entitled to 5 points under this part because he was employed in Australia as a motor mechanic (which is his nominated skilled occupation) for at least 12 months and less than 36 months in the relevant period in accordance with item 6D41.
Specifically, the applicant has claimed that he worked as a motor mechanic for S and R Mutual Service Pty Ltd (trading as RR Automotive) in the Melbourne suburb of Coolaroo from 3 October 2016 to 26 November 2017. To support these claims, the applicant has provided a number of documents to both the Department and the Tribunal, including pay slips, time sheets and tax records such as annual payment summaries and Australian Tax Office notices of assessment. The applicant has also provided statements from himself and the owner of this business, Mr Ranjit Singh, in support of these claims. Both the applicant and Mr Ranjit Singh provided evidence at the Tribunal hearing.
The applicant, through his representative, has provided the Tribunal with a copy of a work assessment conducted for the purposes of the applicant’s Job Ready program application. This assessment was conducted on-site at the premises of RR Automotive on 22 June 2017. As discussed with the applicant at the hearing, the Tribunal has placed significant weight on this assessment as it provides third party verification that the applicant did actually perform work at RR Automotive as claimed and also provides a successful assessment of the applicant’s skills in his nominated occupation indicating that he was independently assessed as being able to perform motor mechanic duties to a satisfactory standard.
In the delegate’s decision record, concern was expressed that the applicant may not have been employed full time as a motor mechanic for the relevant period as he was also employed in other jobs at the time, including as a store person on a casual basis at a Woolworths distribution centre in the Melbourne suburb of Broadmeadows. The delegate was also concerned that taxation records submitted by the applicant showed that he earned more money from this job than from his job as a motor mechanic in both the 2016/2017 and the 2017/2018 income tax years.
However, the Tribunal accepts the explanation offered by the applicant at the hearing that he was a hard-working person who was prepared to work in multiple jobs in order better provide for himself and his family. The Tribunal also accepts claims made by the applicant and his representative that casual work as a store person provided the applicant with flexibility to do this extra work after he finished his shift as a motor mechanic and at weekends. The Tribunal also accepts the claims made that this casual work was paid more on an hourly basis than the applicant’s work as a motor mechanic and that he also earned additional penalty rates when working on weekends and public holidays as a store person. In addition, the Tribunal notes that the relative annual income tax year earnings for each job are distorted by the fact that the applicant worked as a store person for the entire tax years in question whereas he only worked as a motor mechanic for parts of the relevant tax years.
Further, the Tribunal notes the close proximity of the neighbouring suburbs of Coolaroo and Broadmeadows and, on this basis, accepts the submission of the representative that it was both feasible and convenient for the applicant to travel the short distance between the two jobs.
As discussed with the applicant at the hearing, the Tribunal does have some concerns about the confirmation letter from Woolworths Limited dated 28 June 2016 which stated that the applicant was employed at the distribution centre as a store person on a casual basis and that he was working ‘day shift’. However, in the absence of any information to the contrary, the Tribunal accepts the explanation offered by the applicant at the hearing that he was employed in this casual position prior to commencing his work as a motor mechanic and that he initially worked day shift hours as stated on this letter, but that after he secured employment as a motor mechanic he then asked his team leader at the distribution centre to alter his hours to afternoon shift and weekends so that he could work in both positions. This is consistent with the well-established flexible patterns of casual employment across Australia.
Having considered all of the evidence before it, the Tribunal accepts that the applicant was employed as a motor mechanic on a full-time basis from 3 October 2016 to 26 November 2017 by S and R Mutual Service Pty Ltd (trading as RR Automotive) in the Melbourne suburb of Coolaroo. This employment was for a period of 13 months.
Accordingly, having been employed in Australia in the nominated skilled occupation of motor mechanic for at least 12 months and less than 36 months, the Tribunal finds that the applicant satisfies the requirements of item 6D41 for the award of 5 points.
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
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.
Based on the assessment above in relation to Part 6D.3 and Part 6D.4, the combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 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
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 provided no evidence and has made no claims to either the Department or the Tribunal that he has completed any such professional year or that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal, 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.
The applicant has provided a completion letter, graduation certificate and academic transcript indicating that he has been awarded a Diploma of Automotive Management from Menzies Institute of Technology in Melbourne, Australia.
Accordingly, on the evidence before it, the Tribunal is satisfied that the applicant has been awarded a diploma by an Australian education institution and therefore meets the requirements of item 6D73 for the award of 10 points.
Therefore, the applicant is entitled to 10 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 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.
The applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he has undertaken any such relevant study or that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal, 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.
The applicant has provided a completion letter, graduation certificates and transcripts from Menzies Institute of Technology in Melbourne, Australia indicating that he completed a Certificate 3 in Automotive Mechanical Technology and a Diploma of Automotive Management at this institution from 5 October 2009 to 28 October 2011.
These courses were registered courses for the purposes of reg 1.03. The verifying documents provided to the Department indicate that the applicant completed the course over 24 calendar months (which is more than 16 calendar months) and as a result of at least 2 academic years of study, all instruction was conducted in English and at all relevant times during these studies the applicant was the holder of a valid Australian student visa. There is no evidence before the Tribunal to indicate that the applicant did not comply with the conditions of this student visa.
Therefore, on the evidence before it, the Tribunal is satisfied that the Australian study requirement had been met at the time of invitation and that 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 provided no evidence and has made no claims to either the Department or the Tribunal that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal, 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 provided no evidence and has made no claims to either the Department or the Tribunal that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal, 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 provided evidence that he has a spouse who is the second named applicant in this application. However, the applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he is entitled to any points under this part.
Therefore, on the evidence before the Tribunal, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa and there is no evidence before the Tribunal that the nomination from the state of New South Wales has been withdrawn.

Therefore, on the evidence before the Tribunal, the applicant is entitled to 5 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  10 points
6D.3 - Overseas employment experience  0 points
6D.4 - Australian employment experience  5 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  10 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  0 points
6D.12 - State or Territory nomination  5 points
6D.13 - Designated regional area nomination or sponsorship qualifications
0 points
Total points  65 points
The first named applicant’s assessed score under the points system is therefore 65 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI LIN 19/210. The first named applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is also a requirement that the first named applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the first named applicant stated a score of 65 points. On the basis of the points assessment above, the Tribunal finds that the first named applicant has achieved the score stated in the invitation to apply for the visa.
For the above reasons, the first named applicant is entitled to a maximum of 65 points under the points test. As the first named applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the first named applicant satisfies cl 190.214, which is a prescribed criterion for the grant of the visa.
Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria. This includes any claims made by the second named applicant.
DECISION
The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:
·cl 190.214 of Schedule 2 to the Regulations.
In relation to the second named applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.
Peter Katsambanis
Member

[2023] AATA 3050

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction