YANG (Migration)

[2017] AATA 387

YANG (Migration) [2017] AATA 387 (15 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ruolei Yang
Ms Jingjing Wu

CASE NUMBER:  1603294

DIBP REFERENCE(S):  BCC2015/2647397

MEMBER:Wan Shum

DATE:15 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

·cl.189.214 of Schedule 2 to the Regulations.

Statement made on 15 March 2017 at 11:58am

CATCHWORDS

Migration – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 – External Auditor – Points test – Accountant – Achieved qualifying score

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96(2), 350
Migration Regulations 1994, Schedule 2, Schedule 6D, cl 189.214, r 1.15, r 2.26AC, IMMI 12/017, IMMI 12/029

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 Immigration on 22 February 2016 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visas under s.65 of the Migration Act 1958 (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 7 September 2015 and applied for the visa on 10 September 2015. 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).

3. 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 External Auditor.

4. 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.

5. The applicant has sought review of that decision. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration and did not consider a hearing necessary.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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’.

7. 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).

8. 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.

   Points test assessment

   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

9. 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.

10. At the time of invitation the applicant was aged 27. Therefore, the applicant is entitled to 30 points under this Part.

    Part 6D.2 – English language qualifications

11. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, he had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).

12. The International English Language Testing System (IELTS) test report form submitted by the applicant for a test taken on 17 May 2014 indicates that the applicant obtained 6.0 in listening, 6.0 in reading, 6.0 in writing and 6.0 in speaking.

13. Based on these results, the applicant does not have proficient English (as defined in r.1.15F) or superior English (as defined in r.1.15EA). He is therefore not entitled to points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

14. 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 at least 36, 60, or 96 months in the 10 years immediately before that time.

15. The applicant did not claim to have been employed overseas. Therefore, the applicant is not entitled to points under this part.

    Part 6D.4 – Australian employment qualifications

16. 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

17. The applicant provided details of having been employed in Australia for less than 12 months in the past 10 years. The applicant is therefore not entitled to points under this part.

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

18. 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.

19. The applicant does not have qualifications in both Parts 6D.3 and 6D.4 and is not entitled to points under this part.

    Part 6D.6 – Australian professional year qualifications

20. 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 at least 12 months in the immediately preceding 48 months. The relevant instrument (IMMI 12/029) specifies that the Professional Year Program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates is one such course.

21. According to information from the CPA Australia website, the Skilled Migration Internship Program: Accounting (SMIPA) is a professional year program approved by the Department of Immigration and Border Protection (DIBP) (formerly known as the Department of Immigration and Citizenship), available to overseas students who have an Australian accounting degree qualification as a result of at least two years' study in Australia.

22. The applicant has provided evidence that he completed the requirements for the SMIPA on 2 May 2015 at TOP Education. The Tribunal has confirmed with the provider that the applicant completed the course in May 2015. The Tribunal notes that TOP Education is no longer an accredited provider of the program, but sought information from CPA who advised that although TOP Education’s contract was cancelled, the provider was given an opportunity to “teach out” all current students as long as the requirement were met by 22 August 2015. The Tribunal finds that the applicant did complete a professional year for at least 12 months in the immediately preceding 48 months.

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

    Part 6D.7 – Educational qualifications

24. 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 r.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.

25. The applicant has provided evidence of being awarded a Bachelor of Business by the University of Technology Sydney. The certification from the university confirms that the degree was taught in English and normally takes three years full-time study. This degree was conferred on 18 March 2014. The Tribunal finds that the applicant was awarded a bachelor degree by an Australian educational institution; and is therefore entitled to 15 points.

    Part 6D.8 – Australian study qualifications

26. 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 r.1.15F of the Regulations. To meet the 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.

27. At the time of invitation, the applicant had completed a bachelor degree from the University of Technology Sydney (UTS). The academic statement indicates that the applicant commenced study in 2012 Autumn Semester (February 2012) and completed the course in Spring Semester 2013 (December 2013). The registered duration of the course is 156 weeks. Having regard to the certification from UTS and evidence from PRISMS records, the Tribunal finds that it was as a result of a course that was a registered course and was completed in a total of at least 16 calendar months; as a result of at least 2 academic years study; for which all instruction was conducted in English. The applicant held a Subclass 573 visa during this time. There is nothing before the Tribunal to indicate that he did not comply with visa conditions during this time.

28. As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

29. 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.

30. The applicant is claiming points under this Part and explained that he had not properly uploaded the relevant document when asked by the Department. A copy of the NAATI accreditation was provided to the Tribunal, dated 7 May 2015.

31. The accreditation was based on his completion of the Diploma of Interpreting conducted by Sydney Institute of Interpreting and Translating. The accreditation remains valid until 6 May 2018. The Tribunal has sought confirmation that the applicant was accredited as a Paraprofessional Interpreter in the English and Mandarin languages (in both language directions).

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

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

33. 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 r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this part.

    Part 6D.11 – Partner Skill Qualifications

34. Five 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. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

35. The applicant has not claimed points under this part and there is no evidence that his spouse has specified a skilled occupation and had her skills assessed.

    Part 6D.12 – State or Territory nomination qualifications

36. 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.

    Part 6D.13 – Designated area sponsorship qualifications

37. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - 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

38. 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  0 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  NA

    6D.6 - Australian professional year  5 points

    6D.7 - Educational  15 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  5 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  60 points

39. The applicant’s assessed score under the points system is therefore 60 points.

40. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The 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?

41. 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 60 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.

42. For the above reasons, the applicant is entitled to a maximum of 60 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.189.214, 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

43. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.214 of Schedule 2 to the Regulations.

    Wan Shum
    Member