1507117 (Migration) [2015] AATA 3773 (25 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANTS:	Mr Naresh Pandey
Ms Xuan Huyen Do 
CASE NUMBER:	1507117
DIBP REFERENCE(S):	BCC2010/251880 
MEMBER:	John Billings
DATE:	25 November 2015 
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:
•	cl.886.221 of Schedule 2 to the Regulations

Statement made on 25 November 2015 at 4:50pm
statement of decision and reasons
application for review
1.	This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).
2.	The applicants, Mr Pandey and Ms Do, applied for the visas on 23 June 2010. The relevant subclass in this case is Subclass 886 (Skilled - Sponsored).  The criteria to be met for the grant of a Subclass 886 visa are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3.	The delegate refused to grant the visas on 12 May 2015 on the basis that Mr Pandey did not satisfy cl.886.221 Schedule 2 to the Regulations.  The delegate found that, because there was no evidence to support his claim that he had competent English, Mr Pandey did not have the relevant qualifying score when assessed in relation to the visa.  The applicants applied for review on 25 May 2015.  
4.	The applicants appeared before the Tribunal on 25 November 2015 to give evidence and present arguments. 
5.	Mr Pandey is a 26 year old national of India.  Ms Do is a 34 year old national of Vietnam.  They were married in Australia on 23 June 2010.  Mr Pandey first arrived in Australia on 11 July 2007 holding an Indian passport and a Class TU Student visa that ceased on 15 March 2011.  Ms Do first arrived in Australia on 18 August 2007 holding a Vietnamese passport and a Class TU Student visa that ceased on 15 March 2011.  Mr Pandey and Ms Do have departed and re-entered Australia a number of times since they first arrived.
6.	The visa application and supporting material contains this information.  Mr Pandey’s nominated occupation is Cook.  He has undertaken courses in Australia including a Diploma in Hospitality Management from December 2007 to September 2009 and a Diploma in Hospitality from May to June 2010.  According to the visa application he undertook IELTS tests in June 2009 and January 2010.  He provided an IELTS test report form to the Department dated 26 June 2010.  That showed that he obtained scores of at least six in each of the four test components but, in circumstances where the test report form had evidently been altered, he was found not to meet the requirements of PIC (Public Interest Criterion) 4020.  His true score in that test was below the required score.  The visa was refused.  On review, the MRT (Migration Review Tribunal), determined that he did not meet the requirements of PIC 4020 but decided that the requirements should be waived: see MRT case number 1411547, decision dated 20 February 2015.  
7.	The MRT remitted the case to the Department but by the time of the primary decision now under review Mr Pandey had not provided any further evidence in relation to his English proficiency.  He has now provided to the Tribunal an IELTS test report form dated 11 September 2015.  That indicates that in a test held on 29 August 2015 he achieved these scores: Listening 6.0; Reading 6.0; Writing 6.0; and Speaking 6.5.  The Tribunal has independently verified those results.  
8.	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
9.	The issue in the present case is whether Mr Pandey satisfies cl.886.221 which requires that the applicant has the ‘qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act (ss.92 to 96). That subdivision provides for a ‘points’ system under which an applicant is given the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. The qualifications and points applicable to this case are prescribed in Schedule 6B to the Regulations (r.2.26AA). The 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 6B, 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 skilled occupation that Mr Pandey nominated in the visa application. An occupation is a ‘skilled occupation’ if: it is specified by the Minister in an instrument in writing 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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 12/068. In the present case, the applicant nominated the occupation of Cook.
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s decision?
Part 6B.1 – Occupational Qualifications
11.	Points are available under this Part if the applicant has a suitable skills assessment for his or her nominated skilled occupation for which 40, 50 or 60 points are available. 
12.	Mr Pandey’s nominated occupation of Cook is specified in Legislative Instrument IMMI 12/068.  The relevant assessing authority is TRA (Trades Recognition Australia).  
13.	The Department’s file includes a copy of a positive skills assessment by TRA dated 22 December 2008 for the nominated occupation of Cook.  
14.	On the basis of that evidence Mr Pandey is entitled to 60 points under this part: see item 6B11 in Schedule 6B.  
Part 6B.2 – Age Qualifications
15.	Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. The Department’s file includes a copy of the relevant pages of Mr Pandey’s Indian passport.  On the basis of that evidence, and Mr Pandey’s oral evidence, the Tribunal finds that he was aged 20 years at the date of the visa application.  
16.	Therefore, Mr Pandey is entitled to 30 points under this part: see item 6B21 in Schedule 6B.  
Part 6B.3 – English Language Qualifications
17.	Points are available under this Part on the basis of the applicant’s level of English language proficiency. 
18.	Mr Pandey submits that he has competent English as defined in r.1.15C, entitling him to 15 points.  As in force at the time of the visa application r.1.15C defined competent English in ways including that a person would have competent English if they satisfy the Minister that they achieved a score of at least six for each of the four test components in an IELTS test conducted not more than two years before the day on which the application was lodged.  
19.	On the basis of the IELTS test report form dated 11 September 2015 referred to above the Tribunal finds that Mr Pandey has competent English.  
20.	Therefore, Mr Pandey is entitled to 15 points under this part: see item 6B32 in Schedule 6B.  
Part 6B.4 – Specific Employment Qualifications
21.	Points are available under this Part if the applicant was employed in a skilled occupation, or if the nominated skilled occupation was one for which 60 points are available, in that occupation or a closely related skilled occupation, for at least 36 months in the 48 months immediately before the visa application was made. 
22.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.5 – Australian Employment Qualifications
23.	Points are available under this Part if the applicant has been employed, or 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 total of 12 months in the 48 months immediately preceding the visa application date.
24.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.6 – Australian Educational Qualifications
25.	An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia. In this case Mr Pandey meets the Australian Study Requirement for the following reasons.  
26.	Regulation 1.03 provides that a person satisfies the Australian study requirement if the person satisfies the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that are registered courses; that were completed in a total of at least 16 calendar months; that were completed as a result of a total of at least two academic years study; for which all instruction was conducted in English; and that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
27.	The Department’s file includes copies of Mr Pandey’s diplomas and other certificates and academic transcripts.  There are letters written on behalf of his education providers dated 21 September 2009 and 17 June 2010.  The first indicates in relation to his Diploma of Hospitality Management that he successfully completed the course and that it was a two-year full time course for which instruction was conducted in English.  The transcript for that course includes the CRICOS course code.  The second letter indicates that Mr Pandey completed units for courses including the Diploma of Hospitality from May to June 2010.  On the basis of this evidence, as a whole, and evidence regarding Mr Pandey’s status as the holder of a Student visa at the relevant time, the Tribunal is satisfied that Mr Pandey meets the Australian Study Requirement: see item 6B64 in Schedule 6B.  
28.	Therefore, Mr Pandey is entitled to 5 points under this part.
Part 6B.7 – Occupation in Demand Qualifications
29.	Points may be awarded under this Part if the applicant has nominated a migration occupation in demand (as specified in an instrument), and has been employed in that occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date. Additional points are available if the applicant has an offer of full time employment in certain organisations.  
30.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.8 – Designated Language Qualifications
31.	Points may be awarded under this section if the applicant is the holder of a qualification that is equivalent to a degree awarded by an Australian tertiary institution where the tuition was conducted in a designated language, or the applicant is accredited as a professional interpreter or level 3 translator in a designated language.  Designated languages are specified by the Minister.    
32.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications
33.	Points may be awarded under this part if the applicant meets the 2 year study requirement / Australian study requirement (as applicable), 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.  
34.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.10 – Partner Skill Qualifications
35.	Points may be awarded under this Part if the applicant has a spouse or partner who is also an applicant for certain skilled visas, is under 45 years of age and who has certain skills and qualifications.
36.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Part 6B.11 – State or Territory Nomination Qualifications
37.	Points are available under this Part for applicants for a Subclass 176, 475, 487 or 886 visa who have been nominated by a State or Territory government and the Minister has accepted the nomination. 
38.	At the hearing Mr Pandey confirmed that he made no claims and submitted no evidence in relation to this part.  Therefore he is entitled to no points under this part.  
Conclusion on points
39.	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 6B is:
Occupational qualifications	60 points

Age qualifications	30 points

English language qualifications	15 points

Specific employment qualifications	0 points

Australian employment qualifications	0 points

Australian educational qualifications	5 points

Occupation in demand qualifications	0 points

Designated language qualifications	0 points
 
Study in regional Australia or a low-population
growth metropolitan area qualifications	0 points

Partner skill qualifications	0 points

State or Territory nomination qualifications	0 points

Designated area sponsorship qualifications	0 points

Total points	110 points
40.	The pass mark is 100 points: see Legislative Instrument IMMI 12/017. 
41.	For the above reasons, Mr Pandey is entitled to a maximum of 110 points under the points test. At the relevant points in time, the pass mark is and has been 100 points. Accordingly he has achieved the qualifying score required to pass the points test and therefore meets cl.886.221 which is a prescribed criterion for the grant of a Subclass 886 visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.
decision
42.	The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:
•	cl.886.221 of Schedule 2 to the Regulations

John Billings
Senior Member