1417265 (Migration)

[2016] AATA 3031

1417265 (Migration) [2016] AATA 3031 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jongok Kwogn
Mr Myoungjung Kim
Ms Enoch Kim
Ms Esther Kim

CASE NUMBER:  1417265

DIBP REFERENCE(S):  BCC2009/431467

MEMBER:Alan Duri

DATE:15 January 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 15 January 2016 at 9:27am

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 Mrs Kwogn, her husband Mr Kim and their two children Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Kwogn applied for the visa on 7 November 2009. 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 2 October 2014 on the basis that Mrs Kwogn did not satisfy cl.886.221 of Schedule 2 to the Regulations because Mrs Kwogn did not satisfy the points test.

4. Mrs Kwogn appeared before the tribunal on 6 January 2016 to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. During the hearing the tribunal was provided with a variety of material, that where relevant, will be referred to below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The question before the tribunal is whether Mrs Kwogn applicant 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).

7. Some elements of the points test relate to the skilled occupation that the applicant 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 IMMI12/068. In this case, Mrs Kwogn 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

8. 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.

9. Mrs Kwogn’s nominated occupation is “cook”.  The department’s file contains a TRA skills assessment.  During a hearing Mrs Kwogn confirmed that she is a cook.

10. According to IMMI12/068 the occupation cook attracts 60 points.

11. Therefore, Mrs Kwogn is entitled to the maximum 60 points under this part.

    Part 6B.2 – Age Qualifications

12. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.  Mrs Kwogn was born 18 August 1967.  The visa application was lodged on 6 November 2009.  Therefore she was 42 years old at the time of the visa application.

13. Therefore, Mrs Kwogn is entitled to 15 points under this part.

    Part 6B.3 – English Language Qualifications

14. Points are available under this Part on the basis of the applicant’s level of English language proficiency.

15. Mrs Kwogn provided an IELTS test dated 7 November 2009 indicating that she has competent English. 

16. Therefore, Mrs Kwogn is entitled to 15 points under this part.

    Part 6B.4 – Specific Employment Qualifications

17. 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.

18. In particular item 6B42 provides that points can be awarded under this item if the applicant has been employed in a skilled occupation for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made.  The skilled occupation does not have to be the one nominated in the visa application.  In this case Mrs Kwogn claims that at the time of the visa application she had been employed as a carer in a nursing home since 2003.

19. Mrs Kwogn’s visa application was lodged on 7 November 2009.  The 48 month period from 7 November 2005.

20. There was no evidence before the delegate that Mrs Kwogn was employed in a skilled occupation for at least 36 months on the 48 months preceding the visa application lodged 7 November 2009.

21. However, Mrs Kwogn subsequently provided evidence to the tribunal that she was employed as a carer from 2003 until 2013.  She gave evidence to the effect that she normally worked up to 20 hours per week (in accordance with her student visa conditions).  In support of her oral evidence, Mrs Kwogn supplied a letter dated 5 November 2009 from Warrigal Care as well as various payslips from 2008 and 2009.

22. For the points tests in Schedules 6B  and 6C,  where the visa application was made before 1 July 2012, the term ‘employed’ is defined by r.2.26A(7) as ‘engaged in an occupation for remuneration for at least 20 hours weekly’. 

23. The evidence provided by Mrs Kwogn included her payslips for the 2008 and 2009 years preceding the visa application. Virtually all of the fortnightly payslips indicate that Mrs Kwogn was usually working for less than 40 hours per fortnight.  It follows that Mrs Kwogn’s employment at the nursing home does not meet the definition of “employed” as defined in r.2.26A(7).  This is regardless of whether or not Mrs Kwogn employment as a carer can be classified as a skilled occupation.

24. Therefore, Mrs Kwogn is entitled to no points under this part.

    Part 6B.5 – Australian Employment Qualifications

25. 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.

26. As noted above Mrs Kwogn told the tribunal that although she was originally employed as a carer in a nursing home from 2003.  She also indicated that she asked the management to allow her to work as a kitchen hand.  She indicated that she did this sort of work for at least three years before the visa application.  Mrs Kwogn stated that she worked up to 20 hours per week.  Mrs Kwogn supplied a letter dated 5 November 2009 from Warrigal Care indicating that she “has filled the roles of carer and kitchen hand at various times”.  There is no indication in this letter as to what periods of time Mrs Kwogn worked as a kitchen hand.

27. There is no evidence or suggestion that Mrs Kwogn was employed in the nominated skilled occupation (as a cook) for any period in the 48 months leading up to the visa application.

28. This leads to the question of whether or not a kitchen hand is a “closely related skilled occupation”.  A kitchen hand is obviously in the general same area as a cook.  Whether or not it is “closely related skilled occupation” is another matter.  In the tribunal’s view a kitchen hand and cook are distinct roles.  While all jobs require some level of expertise, the tribunal does not accept that a kitchen hand is a “closely related skilled occupation” in the sense envisaged in Schedule 6B.

29. At any rate, as discussed above, Mrs Kwogn does not satisfy the definition of “employed” in r.2.26A(7) because the evidence shows that she was usually employed for less than 20 hours weekly. 

30. There is no evidence or suggestion that Mrs Kwogn has completed a professional year in Australia in the nominated skilled occupation or a closely related occupation.

31. Mrs Kwogn is entitled to no points under this part.

    Part 6B.6 – Australian Educational Qualifications

32. An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia.

33. Mrs Kwogn has studied in Australia and achieved a Diploma in Frontline Management.  During the hearing Mrs Kwogn indicated that she also had studied nursing at the Australian Catholic University from 2003 until 2005.  However, unfortunately she did not complete the degree.  Made no further claims against this Part.

34. Therefore, Mrs Kwogn is entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

35. 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.

36. No claims have been made against this part.

37. Therefore, Mrs Kwogn is entitled to no points under this part.

    Part 6B.8 – Designated Language Qualifications

38. 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. 

39. “Degree” in this context is defined in r.2.26A(6):

    (6)    In Part 6 of Schedule 6A:
    degree
    means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:
    (a)    the entry level to the course leading to the qualification is:

    (i)    in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)    in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)    in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)    in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)    in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

40. Mrs Kwogn is fluent in Korean, which is a designated language under r.1.03. 

41. However there is no evidence before the delegate that Mrs Kwogn has a degree equivalent qualification, and whether the tuition for which was conducted in a designated language, or that she is a professional interpreter / Level 3 translator in a designated language accredited by the National Accreditation Authority for Translators and Interpreters (NAATI).

42. During the hearing Mrs Kwogn indicated that she is unable to obtain NAATI accreditation. 

43. However, Mrs Kwogn provided the tribunal documents from Masan College, Korea, indicating that she has a qualification in nursing and that she satisfactory completed a three-year course from 8 March 1889 to date of graduation, 7 February 1999.  The particular qualification in the context of the document appears to be a diploma.  Mrs Kwogn made no claim that the particular course was the equivalent of an Australian degree. Indeed according to its website Masan College became Masan University on 20 November 2011 and commenced four year Bachelor of Nursing degrees from 30 November 2011. 

44. Based on the evidence before it the tribunal is not satisfied that Ms Kwogn’s Korean education qualification from Masan College is of an equivalent standard to a degree awarded by an Australian tertiary educational institution.

45. Therefore, Mrs Kwogn is entitled to no points under this part.

    Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications

46. 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. 

47. No claims are made against this part.  Therefore Mrs Kwogn is entitled to no points under this part.

    Part 6B.10 – Partner Skill Qualifications

48. 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.

49. Mrs Kwogn told the tribunal that her husband was born on one April 1966 and has worked as a tiler in Australia.  She indicated that a husband does not have a skills assessment.  Mrs Kwogn also indicated that her husband’s English is very limited. 

50. Given these circumstances, the tribunal concluded that Mrs Kwogn is entitled to no points under this part.

    Part 6B.11 – State or Territory Nomination Qualifications

51. 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.

52. No claims are made against this part.  Therefore Mrs Kwogn is entitled to no points under this part.

    Part 6B.12 – Designated Area Sponsorship Qualifications

53. Points are available under this Part for Subclass 475 and 487 visa applicants who have been sponsored by a relative and the Minister has accepted the sponsorship.

54. No claims are made against this part.  Therefore Mrs Kwogn is entitled to no points under this part.

    Conclusion on points

55. 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  15 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  95 points

56. At the time of the delegate’s assessment and as at date of the tribunal’s decision the pass mark was 100 points.  Mrs Kwogn has therefore not achieved the qualifying score to pass the points test.

57. For the above reasons, Mrs Kwogn is entitled to a maximum of 95 points under the points test. At the relevant times the pass mark was 100 points. Accordingly Mrs Kwogn has failed to achieve the qualifying score required to pass the points test and therefore she does not meet cl.886.221 which is a prescribed criterion for the grant of a Subclass 886 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

58. It follows that Mrs Kwogn’s husband and children also do not meet the criteria for the visa.

59. In summary Ms Kwogn has claimed that she should extra points under Part 6B.4 or alternatively 6B.5 for her employment before the visa application.  However as discussed above Mrs Kwogn worked less than 20 hours weekly during the relevant period and therefore does not satisfy the definition of “employed” for purposes of the points test.

    DECISION

60. The tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Alan Duri
    Member