Vekariya (Migration)

[2022] AATA 1954

Vekariya (Migration) [2022] AATA 1954 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Akshit Gokaldas Vekariya
Mrs Hetal Akshit Vekariya

CASE NUMBER:  2003243

HOME AFFAIRS REFERENCE(S):          BCC2019/3188570

MEMBER:Warren Stooke AM

DATE:15 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled - Independent (Permanent) (Class SI) visas.

Statement made on 15 June 2022 at 11.03am

CATCHWORDS
MIGRATION – Skilled - Independent (Class SI) visa – Subclass 189 (Skilled - Independent (Permanent)) – engineering technologist – points test score – tribunal’s assessment of criteria agrees with delegate’s – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 on 3 February 2020 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is 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 11 June 2019 and applied for the visa on 25 June 2019 nominating the skilled occupation of Engineering Technologist – ANZSCO Code: 233914.

3. The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case, the delegate refused to grant the visas on the basis that the applicant did not satisfy cl 189.224 because the test points score was assessed as 70 points against a requirement of 90 points.

4. The applicants appeared before the Tribunal on 14 June 2022 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that his application had been rejected because at the time of application he required 90 points and he had not made the required 90 points.

6. The applicant stated that his agent handled all documentation concerning his application and he was not sure if a copy of the delegate’s decision was provided to the Tribunal with his application for review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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).

10. 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 18/051. In the present case, the applicant nominated the occupation of Engineering Technologist – ANZSCO Code: 233914.

11. The applicant provided evidence that he received an invitation to apply for a 189 Visa on 11 June 2019 and that the agent lodged the application on 25 June 2019.

12. The Tribunal asked the applicant if it was correct that he required 90 points to satisfy the points score for the grant of a Skilled Independent (Permanent) (class SI) visa and the applicant responded: “Yes”.

13. The Tribunal confirmed with the applicant that he undertook a PTE Test on 29 January 2019 with a test score of 80.

14. The applicant stated that he did not claim work experience overseas in the nominated occupation of Engineering Technologist – ANZSCO Code: 233914.

15. The Tribunal asked the applicant if he undertook an Australian Professional year and he responded: “No”.

16. The applicant provided evidence to the Tribunal that he graduated from Gujarat Technological University in India with a Bachelor of Engineering and a major in Electronics and Communication Engineering.

17. The applicant provided evidence that he completed a Master of Engineering Science (Electrical and Electronics) at Swinburne that was awarded on 14 January 2016.

18. The Tribunal asked the applicant if he had been living in a Regional area and he responded: “No”. The applicant stated that since his divorce he is single, which would provide more points and that the divorce took place after the applicant applied for the 189 visa on 25 June 2019. In this regard, the applicant provided a formal divorce certificate from the Federal Circuit Court dated 14 January 2021.

19. The applicant stated he required a 90 point score at the time of application and he confirmed in evidence that he had a total of 70 points, at that time of application.

20. The applicant provided evidence of a letter from his employer that he is currently engaged in a position of IT Technician with Wintringham Aged Care from 12 November 2019.

21. The applicant advised the Tribunal that he has been offered a position with Barwon Health in Geelong, which has a shortage of skilled employees.

    Part 6D.1 – Age qualifications

22. 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.

23. At the time of invitation on 25 June 2019 the applicant was aged 29 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

24. 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.

25. The applicant provided evidence that he undertook a PTE English language test on 29 January 2019 with a score of 80.

26. A Pearson Test of English Academic (PTE Academic) score of at least 79 for each of the four test components of speaking, reading, writing and listening. Therefore, the applicant with a score of 80 is considered superior and is entitled to 20 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

27. 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.

28. The applicant has not provided any evidence of previous experience in the occupation of Engineering Technologist – ANZSCO Code: 233914 overseas. As such, the applicant does not satisfy the criteria for the award of points for Overseas employment experience qualifications.

29. As the applicant has made no claims and provided no evidence of Overseas employment experience, the applicant does not satisfy the criteria for the award of points for Overseas employment experience.

30. Accordingly, no points were awarded under this criterion.

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

    Part 6D.4 – Australian employment qualifications

32. 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.

33. The applicant stated in the hearing that he did not commence employment in a closely related occupation to the nominated position of Engineering Technologist – ANZSCO Code: 233914 until 12 November 2019, when he was employed as an IT Technician, which the Tribunal notes has an ANZSCO Code:  313199 [ICT SUPPORT TECHNICIANS NEC].

    
    

    This occupation group covers ICT Support Technicians not elsewhere classified.

34. As the applicant has made no claims and provided no evidence of Australian employment qualifications in his application of 25 June 2019, the applicant does not satisfy the criteria for the award of points for Australian employment experience.

35. Accordingly, no points were awarded under this criterion.

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

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

37. 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.

38. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 20 points.

39. As the applicant has made no claims and provided no evidence of Australian employment qualifications, the applicant does not satisfy the criteria for the award of points for Australian employment experience.

40. Accordingly, no points were awarded under this criterion.

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

    Part 6D.6 – Australian professional year qualifications

42. 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.

43. As the applicant has made no claims and provided no evidence of completing a Professional Year the applicant does not satisfy the criteria for the award of points for Australian Professional Year qualifications.

44. Accordingly, no points were awarded under this criterion.

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

    Part 6D.7 – Educational qualifications

46. 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.

47. The applicant confirmed to the Tribunal that he graduated from Gujarat Technological University in India with a Bachelor of Engineering and a major in Electronics and Communication Engineering.

48. Further, the applicant provided evidence that he completed a Master of Engineering Science (Electrical and Electronics) at Swinburne that was awarded on 14 January 2016.

49. As such, the applicant satisfies 6D72 (b) with the award of at least a bachelor qualification, by another institution, that is of a recognised standard (15 points).

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

    Part 6D.7A – Specialist educational qualifications

51. 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 reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a master’s 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.

52. The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.7A before the time of the invitation to apply for this visa.

53. Accordingly, no points were awarded under this criterion.

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

    Part 6D.8 – Australian study qualifications

55. 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.

56. The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.7A before the time of the invitation to apply for this visa.

57. Accordingly, no points were awarded under this criterion.

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

    Part 6D.9 – Credentialled community language qualifications

59. 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.

60. The Tribunal is satisfied that the applicant did not provide evidence of meeting the ‘Credentialled community language qualifications’ requirement specified under Part 6D.9 before the time of the invitation to apply for this visa.

61. Accordingly, no points were awarded under this criterion.

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

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

63. 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 was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.

64. The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.10 before the time of the invitation to apply for this visa.

65. Accordingly, no points were awarded under this criterion.

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

    Part 6D.11 – Partner qualifications

67. 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 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.

68. The applicant stated that he had divorced his partner and that the divorce with formally certified by the Federal Circuit Court of Australia on 14 January 2021.

69. On the basis of the evidence the Tribunal is satisfied that the applicant did not claim points for a partner relationship under Part 6D.11 before the time of the invitation to apply for this visa.

70. Accordingly, no points were awarded under this criterion.

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

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

72. 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 was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.

73. The Tribunal asked the applicant if he had been living in a Regional area and he responded: “No”.

74. The applicant stated that since his divorce he is single, which would provide more points and that the divorce took place after the applicant applied for the 189 visa on 25 June 2019. In this regard, the applicant provided a formal divorce certificate from the Federal Circuit Court dated 14 January 2021.

75. The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.10 before the time of the invitation to apply for this visa.

76. Accordingly, no points were awarded under this criterion.

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

    Conclusion on points

78. 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  20 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  0 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  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 0 points

    Total points  70 points

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

80. At the time of the delegate’s assessment the delegate identified a pass mark of 90 points for the nominated skilled occupation of Engineering Technologist – ANZSCO Code: 233914 as designated in Legislative Instrument IMMI 18/051 of the Register of Instruments - Skilled visas, which was confirmed by the applicant at hearing. The applicant, with a score of 70 has therefore not achieved the qualifying score of 90 to pass the points test.

81. At the time of the delegate’s assessment the pass mark was 90 points: Legislative Instrument IMMI 18/051. The applicant therefore has not obtained the qualifying score of 90 to pass the points test.

1. The Tribunal finds that the applicant does not satisfy cl 189.224.

2. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 Skilled - Independent (Permanent) (Class SI) visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

3. On the basis that the primary applicant has not satisfied the required criteria for the grant of a 189 visa, it follows that the secondary applicant is not a member of a family unit that has met the relevant criteria.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

   Warren Stooke AM
   Member