Takkar (Migration)

Takkar (Migration) [2023] AATA 3770 (7 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sweety Takkar
Mr Amit Takkar
Master Aditya Takkar
CASE NUMBER:  2109672
HOME AFFAIRS REFERENCE(S):          BCC2019/4922668
MEMBER:K. Chapman
DATE:7 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 489 visa:
·cl 489.224 of Schedule 2 to the Regulations; and
·the Tribunal affirms the decision not to grant the third named applicant a Skilled Regional Sponsored (Provisional) visa.

Statement made on 07 November 2023 at 6:14pm
CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – points test – Australian employment experience – tax records, payslips and references provided after due date – loss of right to hearing but telephone interview held – full- and part-time work for three employers – members of family unit – child now Australian citizen and not eligible for visa – representatives referred to registration authority – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.15I, 2.26AC, Schedule 2, cl 489.224, Part 6D.5
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 15 July 2021, to refuse to grant the applicants Regional Sponsored (Provisional) (Class SP) Subclass 489 (Skilled - Regional (Provisional) visas, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’). This is a ‘points based’ visa with two streams. Relevantly, the ‘First Provisional Visa Stream’ is available to skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant (hereafter ‘the applicant’) was invited to apply for the visa on 4 September 2019. She applied for the visa on 1 October 2019. She included the second and third named applicants in the visa application. The Tribunal notes that the third named applicant, the son of the applicant, is now an Australian citizen. He was born in Australia and has attained the age of ten years.
The criteria for the grant of a Subclass 489 - Skilled - Regional (Provisional) visa are set out in Part 489 - Skilled - Regional (Provisional) 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 489.224. Specifically, the delegate did not accept the applicant’s Australian employment experience in the nominated occupation of hairdresser (ANZSCO 391111).
On 6 July 2023, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting her to provide information outlining how she satisfies the ‘points test’ criterion in cl 489.224. The Tribunal notes that this correspondence was sent to the nominated recipient of the applicant, at the time, Mr Andy Arora of ‘E-Help Education & Migration’. Mr Arora listed himself as the representative of the applicant in the application for review. The due date for response to the invitation of the Tribunal was 20 July 2023.
On 25 July 2023, various documents were submitted on behalf of the applicant. They included employment references, taxation records and payslips pertaining to the applicant. The Tribunal has duly considered all material received. The response to the Tribunal’s invitation was received after the specified due date. No extension of time to respond was requested by, or on behalf of, the applicant.
Where an applicant is invited to provide further information in accordance with s 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to s 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear before it, as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.
The Tribunal carefully considered whether to afford additional time to the applicant to give the information requested in the s 359(2) invitation, or to provide further material in support of her application for review. In doing so, it paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision making process.
On 25 August 2023, the Tribunal wrote to the applicant advising her of the loss of right to attend a Tribunal hearing. The Tribunal invited her to provide further supporting material for her application not later than 8 September 2023. No response to this correspondence was received by the Tribunal.
Having regard to the circumstances pertinent to this review, the Tribunal decided to invite the applicant to attend a telephone interview (noting her right to a hearing had been lost). On 13 September 2023, the Tribunal invited the applicant to attend an interview scheduled for 3 October 2023. In response, the applicant submitted material including a copy of the primary decision, organisational charts and a submission from a Registered Migration Agent not on the record. The applicant also indicated she would attend the scheduled telephone interview.
On 29 September 2023, a Mr Daly Kheng (Registered Migration Agent Number 2117506) made a written submission seeking a two day postponement of the telephone interview scheduled for 3 October 2023. Mr Kheng is not on the record in this review, however he wrote under the letterhead of ‘E-Help Education & Migration’. Mr Kheng contended that the applicant was “…currently facing a severe medical condition affecting her brain, which requires immediate attention and monitoring” and it was “…not feasible” for her to participate in the scheduled interview. Mr Kheng requested the telephone interview be rescheduled for 5 October 2023. No medical evidence was submitted to support the contentions of Mr Kheng. Following careful consideration, the Tribunal decided to proceed with the scheduled telephone interview.
The applicant attended the interview by telephone on 3 October 2023, to provide information to the Tribunal. The second named applicant also attended the interview by telephone. They each confirmed they were comfortable proceeding with the interview. Mr Andy Arora of ‘E-Help Education & Migration’ also initially attended the interview by telephone.
The Tribunal discussed with Mr Arora his credentials and it was determined that he is not a Registered Migration Agent, nor is he an Australian Legal Practitioner. Indeed, Mr Arora is not entitled to represent the applicant under the current legislative scheme. In due course, the applicant confirmed that she had not instructed any person to seek a postponement of the scheduled interview. Furthermore, she confirmed she was well and comfortable participating in the interview.
Having ascertained that Mr Arora had no standing to participate in the interview, and no right to represent the applicant at all, the Tribunal dismissed him from the telephone interview. Given Mr Arora appears to have acted as a representative for the applicant without lawful authority to do so, in combination with Mr Kheng (MARN 2117506) lodging a misleading submission for postponement without instructions to do so, the Tribunal will refer both individuals to the Office of the Migration Agents Registration Authority (OMARA) for their consideration. For completeness, the Tribunal notes that the applicant formally withdrew Mr Arora of ‘E-Help Education & Migration’ as her representative shortly after the conclusion of the interview by telephone.
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 review 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 review 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, if a number of points are specified in the instrument as being available and the points requirements are applicable to the person in accordance with the specification of the occupation (reg 1.15I).
The relevant Legislative Instruments regarding the nominated occupation, and the pool and pass marks, are LIN 19/051 and LIN 19/210 respectively. In the present matter, the applicant nominated the occupation of Hairdresser (ANZSCO 391111). The pass mark pertinent to the visa application is 65 points.
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 the invitation to apply for the visa.
At the time of the invitation, the applicant was aged 36 years. Therefore, the applicant is entitled to 25 points under this Part (noting the delegate also granted 25 points).
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 the invitation to apply for the visa. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.3 – Overseas employment experience qualifications
Points may be available under this Part if, at the time of the 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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.4 – Australian employment qualifications
Points may be available under this Part if, at the time of the 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.
At the interview, the applicant outlined her Australian employment experience in the nominated occupation of Hairdresser. Since 2014, the applicant has worked for three Australian employers in the nominated occupation. They are Boutique Noir Salon (Beerwah), KK Beauty Salon (Moffett Beach and Currumundi) and All New Hair for You (Waterford West). The applicant initially performed part time work between 2014 and 2017. From January 2018 to March 2019, the applicant worked full time as a Hairdresser. She submitted to the Tribunal relevant work references for her various stints of employment. The applicant explained to the Tribunal the duties that she performed, in a manner consistent with having worked in the nominated occupation of Hairdresser.
The Tribunal has carefully considered the applicant’s evidence provided at the interview, in combination with the submitted employment references. On balance, having regard to the mixture of part time and full time employment experience, the Tribunal is satisfied that the applicant possessed Australian employment experience in the nominated occupation of at least 12 months at the time of the invitation to apply for the visa. The applicant did not, however, possess at least 36 months experience at that time.
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, then 20 points must be given under this Part for the qualifications and no points are to be given under Parts 6D.3 or 6D.4.
Having regard to the applicant’s circumstances, she is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.6 – Australian professional year qualifications
Five points are available under this Part if, at the time of the 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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of the 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 delegate accepted that the applicant holds a Bachelor Degree, awarded by an educational institution in India, that is of a recognised standard. The Tribunal is similarly satisfied of this circumstance.
Therefore, the applicant is entitled to 15 points under this Part (noting the delegate also granted 15 points).
Part 6D.7A – Specialist educational qualifications
Points may be awarded under this Part if, at the time of the 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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
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 studied several qualifications in Australia at the Certificate, Diploma and Advanced Diploma level. She held relevant Student visas during these studies. The applicant submitted documentary evidence confirming her studies and also provided an overview of them to the Tribunal at the interview. The delegate accepted that the applicant met the Australian study requirement at the time of the invitation to apply for the visa. The Tribunal agrees with that assessment, having regard to the evidence before it.
Therefore, the applicant is entitled to 5 points under this Part (noting the delegate also granted 5 points).
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this Part if, at the time of the 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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
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. No claims are made under this Part.
Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.12 – State or Territory nomination qualifications
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.

Therefore, the applicant is entitled to no points under this Part (noting the delegate also granted no points).
Part 6D.13 – Designated regional area nomination or sponsorship qualifications
Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 489 visa.
The delegate accepted that the applicant holds a valid nomination from the Queensland Government. The Tribunal is similarly satisfied of this circumstance.
Therefore, the applicant is entitled to 15 points under this Part (noting the delegate also granted 15 points).
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  25 points
6D.2 - English language  0 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  15 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  0 points
6D.13 - Designated regional area nomination or sponsorship qualifications 15 points
Total points  65 points
Therefore, the applicant’s assessed score under the points system is 65 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. 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?
The applicant has achieved the qualifying score of 65 points. This is a successful score at the time of this decision: Legislative Instrument LIN 19/210.
Has the applicant achieved the score stated in the invitation to apply for the visa?
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 65 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.
CONCLUSION
For the above reasons, the applicant is entitled to a maximum of 65 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 489.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for Subclass 489 visas.
The Tribunal finds that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, his visa outcome will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.
For the sake of completeness, the Tribunal notes that the third named applicant is now an Australian citizen and is ineligible to hold an Australian visa. Therefore, the decision with respect to him will be affirmed.
DECISION
The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 489 visa:
·cl 489.224 of Schedule 2 to the Regulations; and
·the Tribunal affirms the decision not to grant the third named applicant a Skilled Regional Sponsored (Provisional) visa.
K. Chapman
Member

[2023] AATA 3770

7 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Remedies

Procedural Fairness

Statutory Construction

Appeal