Spicer (Migration)

[2023] AATA 687

Spicer (Migration) [2023] AATA 687 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew Spicer
Ms Sophie Michelle Clayton

REPRESENTATIVE:  Mr Robert Ivan Walker-Stambuk

Principal Solicitor – The Immigration Lawyers

CASE NUMBER:  2018056

HOME AFFAIRS REFERENCE(S):          BCC2020/418470

MEMBER:Jennifer Cripps Watts

DATE:8 March 2023

PLACE OF DECISION:  Canberra

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.

Statement made on 8 March 2023 at 6:50pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Early Plumber – applicant has therefore achieved the qualifying score to pass the points test – applicant is entitled to a maximum of seventy (70) points under the points test –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 190.214

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 on 8 December 2020 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.

2. The first named applicant (the applicant) was invited to apply for the visa on 31 January 2020 (the date of invitation) and applied for the visa on 13 February 2020. 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). To meet the secondary criteria, for their visa to be granted a secondary applicant must have made a combined application with a member of the family unit of a person who holds a Subclass 190 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The delegate refused to grant the applicants’ visas because the applicant did not satisfy the ‘points test’ criterion in cl 190.214 and the secondary applicant did not satisfy the secondary criteria.

3. The applicants are represented by Mr Robert Walker-Stambuk, who provided the Tribunal with written submissions dated 6 March 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

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 (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).

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 (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 Plumber (general), ANZSCO code 334111.  The instrument specifies the assessing authority as 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

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. With reference to the visa application, a copy of the identity page of the applicant’s passport was provided, indicating he was born in 1990.

10. At the time of invitation the applicant was aged not less than 25 years and under 33 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

11. 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.  To be given points under this part, an applicant may be assessed as having either superior English as defined in reg 1.15EA (20 points) or proficient English as defined in reg 1.15D (10 points).

12. The applicant provided evidence of his having undertaken an International English Language Test Score (IELTS) test on 3 December 2019 and achieving for each of the four components; Listening 8.5; Reading 9; Writing 7; and Speaking 9.

13. Legislative instrument IMMI 15/005 specifies, for an applicant who has provided an IELTS text, that a minimum score in each of the four components of 8 is required for superior English, and 7 for proficient English.

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

    Part 6D.3 – Overseas employment experience qualifications

15. 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.

16. At the time of invitation, the applicant claimed to have been employed outside Australia in the nominated skilled occupation for a period totalling at least 96 months in the 10 years immediately before that time, thereby claiming he was entitled to 15 points under this part.

17. The Tribunal has carefully considered the information provided by the applicant at the time of invitation, and additional written submissions received from Mr Walker-Stambuk. 

18. With reference to documents and information on the Department and Tribunal files and to matters put in the applicant’s written submissions dated 6 March 2023, in summary the applicant worked in the nominated occupation of plumber, for:

    a.Tudor NW Ltd from 22 April 2010 to 7 February 2014 (1,388 days)

    b.MH Partitions from 21 February 2014 to 11 June 2014 (111 days)

    c.Tudor NW Ltd from 16 June 2014 to 17 February 2017 (978 days)

    d.Trueline Constructions from 27 February 2017 to 11 May 2018 (439 days)

    e.NPS Infinity from 14 May 2018 to 14 September 2018 (124 days)

19. Added together, this is a total of over 3,000 days during the relevant 10 year period.

20. The applicant had been working as a plumber from 2006.  He completed his level 2 certificate apprenticeship in Heating and Ventilating (Industrial and Commercial Systems Installation) over a period of about two and a half years on 21 April 2010.  From 22 April 2010, with this qualification, he was qualified to work unsupervised as a plumber in the United Kingdom (UK), and did work as a plumber.  In addition to his level 2 certificate, the applicant also undertook an advanced apprenticeship course which he completed on 12 November 2012.  It was not mandatory, but one the applicant chose to do for the purpose of occupational upskilling.  It appears the applicant was assessed as having worked in the skilled occupation from 12 November 2012, and not the earlier date on which he obtained a suitable qualification to work as a plumber, 21 April 2010.

21. The Tribunal is satisfied that the applicant was a qualified plumber, on the basis of his level 2 qualification, from 22 April 2010.  The advanced course the applicant subsequently undertook and which he completed on 12 November 2012, was not mandatory to work as a plumber, unsupervised.  The applicant already had that qualification.  The applicant elected to do the advanced course for the purpose of upskilling.

22. The Tribunal accepts that the applicant worked in the nominated skilled occupation from 22 April 2010, in the 10 years immediately before the date of invitation, for a period of no less than 96 months.    

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

    Part 6D.4 – Australian employment qualifications

24. 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.

25. The applicant made no claim against this part.

26. 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

27. 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.

28. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15.  As this is not more than 20 points, the applicant is entitled to no points under part 6D.5.

    Part 6D.6 – Australian professional year qualifications

29. 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.

30. The applicant made no claim against this part.

31. Therefore, the applicant is entitled to no points under part 6D.6.

    Part 6D.7 – Educational qualifications

32. 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.

33. The Tribunal is satisfied, as was the delegate, that at the time of invitation the applicant had met the requirements for a qualification or award recognised by the relevant assessing authority, for the nominated skilled occupation, as being suitable for the occupation: 6D.75.

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

    Part 6D.7A – Specialist educational qualifications

35. 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.

36. At the time of invitation, the applicant made no claim against this part.

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

    Part 6D.8 – Australian study qualifications

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 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.

39. The applicant made no claims against this part and did not meet the Australian study requirement at the time of invitation.

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

    Part 6D.9 – Credentialled community language qualifications

41. 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.

42. The applicant has made no claim under this part.

43. Therefore, the applicant has been awarded no points under part 6D.9.

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

44. 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.

45. The applicant made no claims against this part.

46. Therefore, the applicant is entitled to no points under part 6D.10.

    Part 6D.11 – Partner qualifications

47. 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.

48. The applicant’s spouse or de facto partner, who holds a United Kingdom passport, was assessed by the delegate as satisfying the requirements of part 6D.11.

49. Therefore, the Tribunal is satisfied that the applicant is entitled to 5 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

50. 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.  There is no information before the Tribunal that the nomination has been withdrawn.

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

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

52. 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.

53. The applicant in this case has not been invited to apply for a subclass 489 visa and is therefore not entitled to any points under this part.

    Conclusion on points

54. 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   0 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   0 points

    6D.9 - Credentialled community language   0 points

    6D.10 - Study in regional Australia or a low-population growth metropolitan area qualification/ Study in designated regional area qualification   0 points

    6D.11 - Partner qualifications   5 points

    6D.12 - State or Territory nomination   0 points

    6D.13 - Designated area sponsorship qualifications/ Designated regional area nomination or sponsorship qualifications   0 points

    Total points  70 points

55. The applicant’s assessed score under the points system is therefore 70 points.

    Qualifying score

56. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 15/005.  The applicant has therefore achieved the qualifying score to pass the points test.

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

57. The Tribunal has considered, and taken into account, any relevant changes to the Regulations or pass mark by the time of the Tribunal’s decision.

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

58. 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 70 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.

59. For the above reasons, the applicant is entitled to a maximum of seventy (70) points under the points test. As the 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 applicant satisfies cl 190.214, 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

60. 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.

    Jennifer Cripps Watts
    Senior Member