[2002] MRTA 6809

CATCHWORDS: Review of visa refusals - Skilled-Australian Linked visa, subclass 105 & 106 - Usual occupation - Relevant Australian authority - General points test - Qualifying score

DECISION: The Tribunal remits the application made by the visa applicants for a Skilled - Australian Linked (Migrant)(Class AJ) visa, subclasses 105 and 106, to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that:

s the visa applicant has achieved a qualifying score for a subclass 105 visa under clause 105.222; and

s the visa applicant has met the criteria under clause 105.224.

1. Asgar MOHAMED (the visa applicant), a male national of India born on 1 March 1958, applied for a Skilled-Australian Linked (Migrant) (Class AJ) visa on 2 January 1998 (D1, f.1, 3-4,12,19,73-74 & 94). Also included in the application were the visa applicant's wife, Syeda Zakia MOHAMED, a national of India born on 25 October 1960, and their children, Neha Asgar MOHAMED, born on 23 October 1987, and Mohamed Ather MOHAMED, born on 17 August 1993 (the secondary visa applicants) (D1, f.13-14, 21-28 & 55-59). A delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) decided to refuse to grant the visas on 2 July 1999 (D1, f.82-87).

2. Ansar MOHAMMED (the review applicant), the brother of the visa applicant (T1, f.4 & 66-67), lodged applications for review with the Tribunal on 24 September 1999 (T1, f.1-9). The decisions are reviewable by the Tribunal and the applications for review were properly made, and combined at lodgement, by a person with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. Applications lodged on or after 1 July 1997 are known as Skilled-Australian Linked (Migrant) (Class AJ) visas and contain two subclasses, subclass 105 - Skilled-Australian Linked and subclass 106 - Regional Linked. This means that any application for a Class AJ visa must be considered against the criteria for both subclasses.

6. Generally, where members of the same family unit have applied for visas together, at least one of the visa applicants must meet the `primary criteria' for the visa. The other applicants need only meet the `secondary criteria'.

7. The criteria and policy immediately relevant to this review are:

Sections 92-96 & 350 of the Migration Act 1958

Regulations 1.15B, 1.19, 2.26 & 2.27 and Parts 105 and 106 and Schedule 6 of the Migration Regulations 1994

GN 25 of 25 June 1997 - Specified Pool Mark and Pass Mark

No. GN 6 of 11 February 1998 - Occupations Requiring English list

Australian Standard Classification of Occupations (ASCO) Dictionary (2nd edition)

8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

T1 - MRT case file V99/06265, folio numbered 1-135.

D1 - Departmental case file F98/125502, folio numbered 1-95.

10. On 2 January 1998 the visa applicant, his wife and two children lodged applications for migration with the Australian High Commission in New Delhi, India (D1, f.1, 79 & 94). The application was lodged in conjunction with a sponsorship application by the review applicant (D1, f.77-77a). He provided documentary evidence that he is the visa applicant's brother (D1, f.4 & 66-67), and that he became an Australian permanent resident on 12 October 1989 (D1, f.77 and T1, f.35).

11. In the application for migration the visa applicant described his usual occupation as Timber Designing of Wood on Machines. He indicated that he had worked for: Latheef Son as Purchase Officer from April 1981 to April 1987 and Manager from May 1996; Raej Interiors as Site Supervisor from February 1993 to April 1995; and Shyam Steel Corporation as Clerk/Sales Executive from April 1989 to January 1993. He stated that his work duties included purchasing and designing of wood for interior decorations, furniture works and bidding for timber at auctions. He also stated that in 1981 he completed a two-year Trade Certificate in the study of timber and its uses with Latheef Son, and in 1996 he completed a qualification in Craftsmanship for Interior Decorating involving designing of wood in lathe and spindle machines with Rahmath Wood Industries (D1, f.5-10). The application included employer statements confirming his employment history and work duties and documents showing the results of some of his secondary school examinations (D1, f.4 -11).

12. The visa applicant stated that his spouse (secondary visa applicant) had been employed as Tax Assistant with the Office of Commissioner of Customs & Central Excise since July 1985. According to the visa applicant, her duties consisted of preparing tax assessments by valuing indigenous and imported goods to prevent loss of government revenue. Documents were provided regarding the secondary visa applicant's educational qualifications (D1, f.32-52), including evidence that in 1982 she was awarded a Bachelor or Arts degree by Bangalore University (D1, f.42).

13. The delegate classified the visa applicant's usual occupation as Supervisor, Wood Processing Machine Operators and his spouse's occupation as Intermediate Inspectors and Examiners (D1, f.82-86). As the entry level for both occupations was an AQF Certificate 11, the visa applicant was only awarded 25 points for the Employment Qualification. The visa applicant received a total of 70 points for all qualifications under Schedule 6. As that score was below the pool mark of 110 points or the pass mark of 115 points, the visa applicant failed to meet the qualifying score under clause 105.222. It was also found that the visa applicant did not satisfy the requirements for a subclass 106 visa. The decision to refuse the application for a Class AJ visa was made on 2 July 1999 and, on the same date, a letter was sent to the visa applicant informing him of that decision (D1, f.87).

14. On 24 September 1999 the review applicant applied to the Migration Review Tribunal for review of this decision (T1, f.1-7). He disputed the delegate's respective classifications of the applicants' usual occupations but he did not suggest any alternate occupations (T1, f.8-9). He contended that the applicants should be awarded 20 points for the language skill factor as their education was undertaken in English. He also stated that the delegate's assessment of the visa applicant under subclass 106 criteria was in error.

15. On 28 February 2002 the Tribunal wrote to the review applicant pursuant to section 359 of the Act, inviting him to provide further evidence of the visa applicant's work duties, and to have the visa applicant's qualifications and experience assessed by Trades Recognition Australia (TRA) and evidence that the visa applicant completed his education in English or had registered for an IELTS test (T1, f 78). On 8 April 2002 the Tribunal received a submission from the review applicant's migration agent, together with a job specification report for the secondary visa applicant and a work reference for her dated 26 September 2000 from the Deputy Commissioner of Central Excise in Bangalore, India (T1, f 83-90). The Tribunal also received a copy of an IELTS test for the secondary visa applicant indicating that she achieved an overall band score of 6.5, and a copy of an assessment dated 29 June 2001 from the Department of Education, Training and Youth Affairs (DETYA). The secondary visa applicant's bachelor of arts degree from Bangalore University was assessed as being comparable to an Australian bachelor degree (T1, f 80-82).

16. In his submission the migration agent stated that the secondary visa applicant's level of education suggests that the delegate's classification of her usual occupation as intermediate inspectors and examiners, which requires only an AQF certificate II, is inappropriate (T1, f 90). He suggested that a more appropriate classification would be office manager, which requires an AQF diploma or higher.

17. On 6 May 2002 the Tribunal wrote to the review applicant pursuant to section 359A of the Act, inviting him to comment on information that the visa applicant is unlikely to achieve the pass mark in the general points test and that the secondary visa applicant's duties do not appear to match the occupations of intelligence officer, records manager or internal auditor and that she is also unlikely to achieve a pass mark in the general points test (T1, f 107). On 12 June 2002 the Tribunal received a response from the review applicant's migration agent, stating that the secondary visa applicant's usual occupation should be classified as office manager and providing a statutory declaration dated 10 June 2002 from her setting out her duties.

18. A hearing was conducted on 23 July 2002 at which the review applicant gave evidence. At the commencement of the hearing the review applicant's migration agent stated that the review applicant was not challenging the delegate's assessment of the visa applicant's usual occupation, but invited the Tribunal to consider that the secondary visa applicant's usual occupation was either office manager, records manager or internal auditor. The migration agent stated that he advised the visa applicant of the duties listed in ASCO for these occupations and invited her to obtain a letter from her employer.

19. The review applicant stated that the secondary visa applicant held various positions within Central Excise as she was promoted within the organisation and has done very well to reach the level of inspector/officer. The review applicant stated that the secondary visa applicant started at the bottom of the organisation and worked her way up the hard way. He stated that he was not aware of the precise nature of the secondary visa applicant's duties, but knew that she had a few staff working under her supervision. He did not know whether the secondary visa applicant had previously performed office manager duties, but knows that she is now supervising staff. He stated that he saw her at the airport when she was working, and a number of other staff reported to her and asked for direction and advice. The review applicant was unable to comment on the contents of the secondary visa applicant's job specification, in particular paragraphs 20 to 22 (T1, f 87).

20. The Tribunal invited the review applicant's migration agent to make a written submission in relation to alternative usual occupations for the secondary visa applicant as it appeared that her duties did not closely match any of those usual occupations suggested by the migration agent. On 29 July 2002 the Tribunal received a submission from the review applicant's migration agent in which he stated that a number of the secondary visa applicant's duties matched the usual occupation of project or program administrator. He submitted that this may be a case where the applicant's duties do not closely match one particular occupation listed in ASCO, and that the Tribunal was not limited to those usual occupations listed in ASCO.

21. On 14 August 2002 the Tribunal wrote to the review applicant pursuant to section 359 of the Act inviting her to provide additional evidence from the secondary visa applicant's employer in relation to her work duties and responsibilities in January 1995 (T1, f 128). On 19 September 2002 the Tribunal granted an extension of time to provide the information. On 28 October 2002 the Tribunal received a letter from the review applicant's migration agent explaining that the secondary visa applicant's employer had been overseas, which caused the delay in responding to the Tribunal's request (T1, f 134). The migration agent also provided a letter dated 23 October 2002 from the Superintendent of Central Excise and Customs in Goppal, India, together with a copy of a job specification prepared by the secondary visa applicant and co-signed by the Superintendent of Excise and Customs (T1, f 130-133). The Superintendent stated that the secondary visa applicant was designated a Tax Assistant in January 1995 and her daily work duties and responsibilities included:

Controlling the duty levy activities of the units within her range of control;

Overseeing and controlling the activities and functions which included collecting of data and analysing the data and submitting reports to her superiors regarding the functioning of the unit range;

Conducting various project studies of the unit range as instructed by her superior officers and submitting results of those project studies;

Advising her superiors of any concerns that may arise in relation to the working of the units, discussing with them these issues and implementing their advice and instructions;

Develop cost effective and efficient file management systems together with computerised systems and blend them effectively.

22. The superintendent stated that he had read the secondary visa applicant's statutory declaration of 10 June 2002 and agreed that she was performing those duties in January 1995. He also stated that the duties included in his work reference for the secondary visa applicant dated 10 May 2002 were also performed by her in January 1995. The superintendent stated that he had signed the secondary visa applicant's own job specification as an indication that it had been read by him, and that he agreed that is was relevant to the tasks performed by the secondary visa applicant in January 1995.

23. Applications lodged on or after 1 July 1997 are known as Skilled-Australian Linked (Migrant) (Class AJ) visas and contain two subclasses, subclass 105 - Skilled-Australian Linked and subclass 106 - Regional Linked. This means that any application for a Class AJ visa must be considered against the criteria for both subclasses.

24. Under clause 105.222, the visa applicant must achieve the qualifying score in the General Points Test under Schedule 6. The current pass mark for the points test is 115 points. This was also the pass mark at the time of the primary decision. The Tribunal is required to award points for each of the following qualifications: Employment, Age, Language Skill, Relationship, Citizenship, Settlement of Sponsor and Location of Sponsor.

25. In order to award points for the Employment Qualification, the Tribunal must first determine the visa applicant's usual occupation, which is defined in subregulation 2.26(5) as:...an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa. In this case that 2-yearly period extends from 2 January 1996 to 1 January 1998 (D1, f.94).

26. Based on the evidence (D1, f.1 & 5-10), the Tribunal is satisfied that the visa applicant's work duties and responsibilities substantially match those of the occupation of either Wood Turner (ASCO code 4921-13) (T1, f.27) or Wood Machinist (A-Grade) (ASCO code 4921-11) (D1, f.28).

27. The Tribunal is required to award points to the visa applicant under the Employment Qualifications of Schedule 6, having regard to whether or not he has satisfied the Australian standards for his usual occupation and his period of employment in that occupation.

28. According to ASCO, the entry requirement for the occupations of Wood Turner (ASCO code 4921-13) and Wood Machinist (A-Grade) (ASCO code 4921-11) is an AQF Certificate III. As those occupations are classified as trade occupations, that qualification is equivalent to a Trade Certificate. The relevant Australian authority for assessing whether the visa applicant meets the Australian standards for those occupations is Trades Recognition Australia (TRA) as part of the Department of Employment and Workplace Relations (DEWR).

29. The maximum score that could be awarded to the visa applicant for the Employment Qualification under Part 1 of Schedule 6 in respect of either of those occupations is 70 points under Item 6102. He would only be entitled to that score if he met the Australian standard for either occupation by 2 January 1995 (being 3 years before he lodged his migration application); he was employed in his usual occupation on that date; and had 2 years of work experience in that occupation or a closely related occupation during the period 2 January 1995 to 1 January 1998. As the visa applicant declined to have his skills and experience assessed by TRA, the Tribunal finds that he does not meet the Australian standard for his usual occupation of wood turner and awards him 25 points under Item 6107.

30. The points applicable to the visa applicant at the time of the primary assessment are:

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Part 1 Item 6107 Employment 25

Part 2 Item 6203 Age 20

Part 3 Language 00

Part 4 Item 6402 Relationship 10

Part 5 Items 6501/6502 Citizenship 00

Part 6 Item 6601 Settlement 10

Part 7 Item 6701 Location 05

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31. The assessed points score of 70 at the time of primary assessment does not meet the required pool mark of 110 or pass mark of 115 in force at that time. Therefore, the visa applicant has not achieved the qualifying score for the purposes of clause 105.222.

32. Section 350 allows the visa applicant to be assessed under the points test at the time of the Tribunal's decision if this would be more favourable to the applicant. At the current time, the visa applicant is not eligible to receive any further points, and neither the pool mark or pass mark has changed. The Tribunal's finding that the visa applicant does not meet the qualifying score remains.

33. If a visa applicant does achieve the qualifying score in respect of all qualifications under Schedule 6, that person's scores may be combined with his/her spouse's qualifications under regulation 2.27. This is done by adding the visa applicant's scores for the Relationship, Citizenship, Settlement of Sponsor and Location of Sponsor qualifications to his/her spouse's scores for Employment, Age and Language Skill qualifications.

34. As conceded by the review applicant's migration agent, the Tribunal is unable to find that the secondary visa applicant's duties closely match those of any of the usual occupations previously suggested by the migration agent. However, the Tribunal accepts that it is not bound by the strict definitions in ASCO, and finds that a number of the duties described by the review applicant in her statutory declaration of 10 June 2002 and her job specification at Central Excise match the duties required of a Project or Program Administrator (ASCO Code 3292-11). Based on the evidence regarding the secondary visa applicant's training and employment the Tribunal is satisfied that the secondary visa applicant's primary duties and responsibilities match the occupational classification Project or Program Administrator. Accordingly, the Tribunal finds that this is her usual occupation.

35. The skill required for that occupation is AQF Diploma or above. As the secondary visa applicant has been assessed as holding a qualification comparable to an Australian bachelor's degree, she satisfies the entry requirements for that occupation. If the secondary visa applicant satisfied the requirements of item 6104 she would be entitled to 55 points for the employment factor. The Tribunal finds that she obtained her bachelor of arts degree in 1982, more than three years before the date of application. The Tribunal is satisfied that the secondary visa applicant worked for at least two years in the three years prior to the date of application in that occupation or a closely related occupation. The secondary visa applicant has been employed by Central Excise since July 1985. The Superintendent of Customs and Excise confirmed that the secondary visa applicant's duties in January 1995, three years prior to the date of application, were the same as the duties she performed at the date of application which closely match the classification of Project or Program Administrator. Therefore, the Tribunal is satisfied that the secondary visa applicant was employed in her usual occupation on the day three years prior to the date of application. The Tribunal finds that the secondary visa applicant satisfies item 6104 and is entitled to 55 points for the employment factor.

36. The secondary visa applicant was 37 years old at the time of lodgement of the visa application and is eligible for 20 points for the Age Qualification pursuant to Item 6203 of Schedule 6.

37. Based on the IELTS test, in which the secondary visa applicant scored an overall band score of 6.5, she is entitled to 15 points for the Language Qualification under Item 6307 of Part 3 of Schedule 6.

38. Combining the points received by the secondary visa applicant for Parts 1 to 3 of Schedule 6 with the points received by the visa applicant for Parts 4 to 7 of Schedule 6, the points applicable at the time of primary assessment are:

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39. The assessed score of 115 points at the time of the primary assessment reaches the specified pass mark of 115 points in force at that time. Therefore, the visa applicant has achieved the qualifying score for the purposes of regulation 105.222 by reasons of regulation 2.27.

40. As the visa applicant has obtained the qualifying score under clause 105.222 by reasons of regulation 2.27, the Tribunal must determine whether the secondary visa applicant is subject to the vocational English requirement under subclause 105.224(2). At the time of application, the occupation of Project or Program Administrator was included in the ORE list at the date of application, and therefore the secondary visa applicant is required to have vocational English. As the secondary visa applicant achieved an overall band score of 6.5 on her IELTS tests, she has vocational English and satisfies the requirements of clause 105.224.

41. As the visa applicant has achieved a qualifying score under clause 105.222 and satisfies the vocational English requirement under clause 105.224, the Tribunal need not determine whether he meets the requirements for a subclass 106 visa.

42. Having regard to regulation 2.27, the visa applicant has achieved the qualifying score under clause 105.222 in relation to a Skilled - Australian-linked (Migrant) (Class AJ) visa, subclass 105.

43. The Tribunal remits the application made by the visa applicants for a Skilled - Australian Linked (Migrant)(Class AJ) visa, subclasses 105 and 106, to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that:

* the visa applicant has achieved a qualifying score for a subclass 105 visa under clause 105.222; and

* the visa applicant has met the criteria under clause 105.224.