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austlii:cth/MRTA/2002/4907
appellant. The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with a direction that the visa applicant meets the requirements...
This case involved a Pakistani man who applied for an Australian skilled migration visa in 1997, sponsored by his brother. The government refused his visa in 2000 because they said his job (Business Machine Mechanic) required English language skills that he didn't have. However, the Migration Review Tribunal found that when the man originally applied in 1997, his occupation was NOT on the list of jobs requiring English. Even though the list was later changed to include his job, the Tribunal applied the rules as they existed at the time of his application. The Tribunal also found he scored enough points (140 out of 115 needed) to qualify for the visa. The Tribunal sent the case back to the Department with instructions to approve the visa, because the applicant met all the requirements for the subclass 105 visa (though not the subclass 106 regional visa because his brother didn't live in a designated regional area for long enough).
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CATCHWORDS: Skilled (Australian Linked) (Class AJ) visa, subclasses 105 and 106 - usual occupation - Business Machine Mechanic - general points test
DECISION: The Tribunal remits the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with a direction that the visa applicant meets the requirements of regulations 105.222 and 105.224 of the Migration Regulations 1994 for the grant of a Skilled (Australia Linked) (Migrant) (Class AJ) visa, subclass 105.
1. This is an application for review of a decision made by a delegate of the now Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). On 3 April 1997 Syed Ejaz ZAIDI (the visa applicant), a male national of Pakistan, born on 1 July 1972, applied for a Concessional Family (Migrant)(Class AJ) visa (D1 f.49). On 29 July 2000 the delegate decided to refuse to grant the visa (D1 f.102-106).
2. Syed Mumtaz Haider ZAIDI (the review applicant), the brother of the visa applicant, lodged a valid application for review with the Migration Review Tribunal (the Tribunal) on 2 October 2000 (T1 f.7). The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
3. The Migration Act 1958 (the Act) and the various Regulations made under it, 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 (PAM) 3 and the Migration Series Instructions (MSI's), 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 it.
4. Applications lodged on or after 1 November 1996, but before 1 July 1997, were known as Concessional Family (Migrant)(Class AJ) visas and had two subclasses, subclass 105 - Skilled (Australian Linked) and subclass 106 - Regional Linked. This means that any application for a Class AJ visa determined must be considered against the criteria for both subclasses. On 1 July 1997 Class AJ was re-named Skilled (Australian Linked) (Migrant) (Class AJ).
5. 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.
6. The criteria and policy relevant to this review are:
Migration Act 1958: sections 92-96, 350 and 360
Migration Regulations 1994: regulations 1.19 and 2.26; Schedule 2, parts 105 and 106 and Schedule 6
GN 34 of 31 August 1994 - Occupations Requiring English list
GN 34 of 31 August 1994 and S 601 of 21 December 1998 - Designated Area lists
GN 25 of 25 June 1997 - Pool Mark and Pass Mark
Australian Standard Classification of Occupations (ASCO), 1st and 2nd editions
7. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. Subsequent amendments may apply in some circumstances.
8. The Tribunal decided to determine the review in the visa applicant's favour on the basis of the material before it, so there was no need for the review applicant to be invited to appear before the Tribunal to give evidence and present arguments relating to the decision under review (see section 360(2)(a) of the Act). The Tribunal had regard to the documents in the Department's file, documents in its own file and to material submitted on behalf of the visa applicant. It had the following documents available to it for the review:
T1 - the Tribunal's case file V00/05279, folios numbered 1 - 97.
D1 - the Department's case file F97/070919, folios numbered 1 - 116.
9. The migration application: On 3 April 1997 the visa applicant lodged an application for a Concessional Family (Migrant)(Class AJ) visa with the Australian High Commission (AHC) in Islamabad (D1 f.49) in conjunction with a sponsorship dated 21 March 1997 from the review applicant (D1 f.7 reverse). The review applicant, who is the sponsor, is the brother of the visa applicant (D1 f.1, 30-35). He became an Australian citizen on 27 August 1996 (D1 f.5).
10. Education and employment history of the visa applicant: The visa applicant completed two years of study in electricity in June 1987 at St Patrick's Technical School and was awarded a certificate (D1 f.15-18). From July 1988 to July 1991 he studied Radio Television & Electronics at the Government College of Technology and was awarded a Diploma of Associate Engineer (D1 f.19-26 & 68-70). He commenced employment in December 1991 at AuVitronics Limited where he was employed as a trainee supervisor until February 1993 (D1 f.6). From March 1993 until March 1996 he worked at Systematic Business Equipments as a customer service engineer (D1 f.7 & 85). From April 1996 to December 1996 he worked at Imaging Systems and Supplies as an equipment service engineer (D1 f.8), then from July 1997 he worked at Shirazi Trading Company (Private) Limited as a service engineer (D1 f.54 & 83). He described his usual occupation as "Electronics Engineer" (D1 f.47).
11. In May 1999 the visa applicant engaged the assistance of a migration agent (D1 f.59-62) who submitted on 11 August 1999 (D1 f.92) that the visa applicant should be considered as an Electronic & Office Equipment trades person (D1 f.89).
12. English language requirement: The delegate determined that the visa applicant's usual occupation is Business Machine Mechanic as defined in the second edition of the Australian Standard Classification of Occupations (ASCO 2nd edition) at code 4315-13. The delegate then found that the visa applicant's occupation is included in the list of occupations requiring English (ORE) and the visa applicant is subject to the mandatory vocational English language requirement. The AHC wrote to the visa applicant on 13 January 2000 and requested that he do the International English Language Testing System (IELTS) test (D1 f.96). The visa applicant sat the IELTS test and scored 5.0 for Listening, 3.5 for Reading, 5 for Writing and 6 for Speaking (D1 f.101).
13. The primary decision: The delegate determined that, based on the results of the IELTS test, the visa applicant's English language ability did not meet the standard required for vocational English and therefore he failed to meet the requirements of clauses 105.224 and 106.223(4). The visa applicant was also considered under the points test. The application was refused on 29 July 2000 and the visa applicant was advised by letter on the same day (D1 f.102-106).
14. Review: On 2 October 2000 an application for a review of the decision was lodged with the Tribunal (T1 f.7). The migration agent submitted on 2 October 2000 that the visa applicant had undertaken another IELTS test and had scored 7.0, 6.5, 6 and 6 (T1 f.14, 25 & 91). On 25 July 2002 TRA advised that the visa has "been classified for the purposes of migration to Australia as a Business Machine Mechanic [4315-13]" and was deemed to have reached the required level of skill on "1 December 1997" (T1 f.95).
15. The Tribunal decided to determine the review in the visa applicant's favour on the basis of the material before it, so there was no need for the review applicant to be invited to appear before the Tribunal to give evidence and present arguments relating to the decision under review (see section 360(2)(a) of the Act). The Tribunal had regard to the documents in the Department's file, documents in its own file and to material submitted on behalf of the visa applicant. It had the following documents available to it for the review.
16. Sponsorship: The Tribunal must be satisfied of the visa applicant's claim that the sponsor is his "brother" if he is able to meet the sponsorship requirements of subclass 105 or 106. The visa applicant has presented his passport (D1 f.35), a police certificate (D1 f.30) and an affidavit (D1 f.31) which confirm his birth details and his father's name. The review applicant's birth details and father's name were confirmed by a birth certificate (D1 f.1). The Tribunal is satisfied that they are siblings. The sponsor, who is the review applicant, was granted Australian citizenship on 27 August 1996 (D1 f.5). The Tribunal is satisfied that the visa applicant meets the sponsorship requirements of clauses 105.211 and 106.211.
17. Regional Linked visa: The criteria for a subclass 106 visa includes a requirement at clause 106.213 that a sponsor resided in a designated area throughout the period of 12 months prior to lodgement of the sponsorship application. The review applicant was living in Brighton, postcode 3187. As at 3 April 1997 postcode 3187 was not included in the Designated Area list (T1 f.75). On this basis the Tribunal finds that the visa applicant is unable to meet this requirement and his application for a subclass 106 visa is refused.
18. Usual Occupation: In order to award points for the Employment Qualification, the Tribunal must first determine the visa applicant's usual occupation. It is defined in regulation 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.
19. After reviewing the evidence, the Tribunal is satisfied that the duties of the visa applicant fit the occupation of Business Machine Mechanic as defined in the ASCO Dictionary (2nd edition) at code 4315-13. The skill level stated for this occupation is an "AQF Certificate III" (T1 f.68). Under policy the skill level is equivalent to a trade certificate. The PAM advises that the relevant Australian authority for this occupation is "DEWRSB" (T1 f.69). This is a reference to the Department of Employment, Workplace Relations and Small Business and its agency Trades Recognition Australia (TRA).
20. Points - Employment factor: On 25 July 2002 TRA advised that the visa applicant meets the skills required for this occupation as at 1 December 1997 (T1 f.95). On this basis the Tribunal finds that he meets the criteria for Item 6103 and awards 60 points.
21. Age factor: At the time of lodgement of the application the visa applicant was aged 24. He meets the requirements of Item 6201 at Part 2 of Schedule 6 and is entitled to 30 points.
22. Language Skill factor: The Tribunal takes into account the results of the IELTS test of 28 July 2000 and finds that the visa applicant meets the criteria of Item 6304 and is entitled to 20 points.
23. Relationship factor: The Tribunal has found that the visa applicant and the sponsor are siblings. The visa applicant therefore meets Item 6402 and is entitled to 10 points.
24. Citizenship factor: The sponsor was granted Australian citizenship on 27 August 1996 (D1 f.5) which is less than 5 years before the lodgement of the application. On this basis the visa applicant meets the requirements of Item 6502 and is entitled to 5 points.
25. Settlement factor: The Tribunal finds that the sponsor meets the requirements of Item 6601(a) and is not disqualified by Items 6601(c) or (b). He is therefore entitled to 10 Points.
26. Location factor: The sponsor resided in Brighton, postcode 3187, in the period of 2 years immediately before the lodgement of the migration application. This was included in a Designated Area at the time of the primary decision on 29 July 2000 (T1 f.77). On this basis the visa applicant meets the requirements of Item 6701and is entitled to 5 points.
27. The points score awarded to the visa applicant may be summarised as follows:-
PART ITEM FACTOR PRIMARY
28. Gazette notice GN 25 of 25 June 1997 set the pool mark at 110 points and the pass mark at 115 points. These marks have not been changed and are in force at time of review. The pool and pass marks constitute the qualifying score required in clause 105.222. This means that the visa applicant attains a qualifying score as at the time of the primary decision and meets the requirement of clause 105.222.
29. Occupations Requiring English: Clause 105.224 requires that if a visa applicant has a usual occupation which is included in a list of occupations prescribed by gazette notice, then the visa applicant must have a proficiency in English which is equivalent to 15 points as set out in Part 3 to Schedule 6. At time of lodgement of the visa application on 3 April 1997, Gazette notice GN 34 of 31 August 1994 did not include the occupation of Business Machine Mechanic (T1 f.71-74). This means that the visa applicant is not required to demonstrate a proficiency in English and meets the requirement of clause 105.224. This is the criterion in dispute.
30. The visa applicant does not satisfy the requirements for a subclass 106 visa.
31. The visa applicant has attained a qualifying score required by clause 105.222.
32. The visa applicant meets the Proficiency in English requirement of clause 105.224.
33. The Tribunal remits the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with a direction that the visa applicant meets the requirements of regulations 105.222 and 105.224 of the Migration Regulations 1994 for the grant of a Skilled (Australia Linked) (Migrant) (Class AJ) visa, subclass 105.
The Tribunal remitted the application to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with a direction that the visa applicant meets the requirements of regulations 105.222 and 105.224 of the Migration Regulations 1994 for the grant of a Skilled (Australia Linked) (Migrant) (Class AJ) visa, subclass 105. The application for subclass 106 was refused.