Agharanya (Migration)

Agharanya (Migration) [2022] AATA 5030 (7 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kingsley Ezenwa Agharanya
Mrs Esther Nneoma Nwokocha
REPRESENTATIVE:  Mrs Yuting Chen (MARN: 1806695)
CASE NUMBER:  1909653
HOME AFFAIRS REFERENCE(S):          BCC2018/3475188
MEMBER:Nicola Findson
DATE:7 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 07 August 2022 at 10:56pm
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurse – ‘point test’ criterion – IMMI 18/067 – overseas employment experience qualifications – email notifications – Australian employment qualifications – score stated in the invitation to apply – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.224; Schedule 6D
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 April 2019 to refuse to grant the applicants visas under s 65 of the Migration Act 1958 (Cth) (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.
The first named applicant (the applicant) was invited to apply for the visa on 11 August 2018. The applicants applied for the visas on 13 September 2018, and the applicant nominated the occupation of Registered Nurse. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224.
The applicants appeared before the Tribunal on 20 May 2022, to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the further delay to the matter if the hearing was not to be conducted by video. The applicants did not raise any concerns in relation to holding a video hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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 (reg 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).
Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument 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 (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051. In the present case, the applicant nominated the occupation of Registered Nurse.
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
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.
At the time of invitation the applicant was aged 39. Therefore, the applicant is entitled to 25 points under this part.
Part 6D.2 – English language qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.
Proficient English is defined in Regulation 1.15D to be a person who achieved a specified score in a specified English language test conducted in a specified period. Legislative instrument IMMI 15/005 specifies a score of at least “B” in each of the four test components of an Occupational English Test (OET).
Based on the results of an OET dated 8 December 2015, for a test undertaken by the applicant on 14 November 2015, the Tribunal is satisfied the applicant demonstrated proficient English, as defined in reg 1.15D, at the time of application.
Therefore, the applicant is entitled to 10 points under this part.
Part 6D.3 – Overseas employment experience qualifications
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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.
In the visa application form, the applicant claimed to have been employed overseas, in the nominated occupation, for 3 years in the past 10 years before the time of invitation to apply for the visa. The applicant provided to the Department evidence of his employment between February 2011 and December 2014, with International Trauma & Critical Care Centre Ltd, as a Registered Nurse working on a full-time basis at the Professor Elsey Harrison Hospital in Nigeria. He also provided evidence that he had worked, on a casual basis at the Yaba Psychiatric Hospital as well as for Medecins Sand Frontieres during this time. However, the delegate did not award any points under this part, because based on the information before him, the delegate was not satisfied that the applicant’s claimed employment was remunerated.
During the hearing, the applicant confirmed that after he had been awarded an Advanced Diploma in Nursing (November 2010), he commenced working as a Registered Nurse at the Professor Elsey Harrison Hospital in Nigeria. He told the Tribunal that he held this role between February 2011 and December 2014, and worked at least two morning shifts (8:00am to 6:00pm) and two night shifts (6:00pm to 8:00am) each week during this period. He explained that during his time at the hospital, he mostly worked in the Emergency Department. However, he said he also worked as a nurse on the male medical wards, as well as in the theatre. The applicant told the Tribunal that he was remunerated for this work. He told the Tribunal that he would not have worked without payment for almost 4 years, and that he used the money he had earned from this work to travel to Australia. He explained that payslips were not issued to him, but a regular wage was paid into his nominated bank account and he would receive email notifications informing him that he had been paid. The applicant explained to the Tribunal that he had made several, unsuccessful, attempts to obtain bank statements for the relevant period of claimed work. The Tribunal notes, that it has an employment contract and work reference in support of the applicant’s claims. In addition, the Tribunal has before it copies of emails the applicant received, notifying him that his wages from International Trauma & Critical Care Centre Ltd had been paid into his bank account. On the basis of the written and oral evidence before it, the Tribunal is satisfied that the applicant worked as a Registered Nurse, on a full-time and remunerated basis, with International Trauma & Critical Care Centre Ltd between February 2011 and December 2014.
The Tribunal also observes, and accepts, the applicant’s evidence that from 2011 until 2014 he worked about two shifts each month for the Yaba Psychiatric Hospital as well as for Medecins Sand Frontieres.
After discussing with the applicant his claimed overseas employment experience, and in light of his evidence that he was performing paid, full time work as a Registered Nurse during the period January 2011 to December 2014, the Tribunal is satisfied that the applicant has completed a period totalling at least 36 months in the relevant period in his nominated skilled occupation or a closely related occupation under Part 6D31.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.
Part 6D.4 – Australian employment qualifications
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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant clarified at the hearing that he is claiming 5 points (not 15 points mistakenly claimed at the time of application) for at least 12 months Australian employment experience. He told the Tribunal that he commenced working as a part-time carer while he was undertaking his registered nurse conversion programme with Curtin University, and was offered work as a Registered Nurse once he received his Registered Nurse registration with AHPHRA. His claimed employment is:
·Bethanie Group - August 2017 to August 2018 (the time of invitation to apply for the visa) employed as a Registered Nurse.
The Tribunal observes the evidence before it that the applicant continues to work as a Registered Nurse for the Bethanie Group, a period of now more than 5 years.
Having reviewed the evidence provided and the tasks and responsibilities of the applicant in this position, the Tribunal is satisfied the applicant is eligible for the award of points under Part 6D41, for Australian employment experience in his nominated skilled occupation.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
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.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10. As this is not more than 20 points, the applicant is entitled to no points under this part. As this is not more than 20 points, the applicant is entitled to no points under this part.
Part 6D.6 – Australian professional year qualifications
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 a period totalling at least 12 months in the immediately preceding 48 months.
There is no claim made or evidence provided that the applicant has completed one of the specified professional year qualifications.
Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
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 reg 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.
The applicant successfully completed a Bachelor of Nursing Science degree at Curtin University in Western Australia in July 2017. His skills assessment issued by the Australian Nursing & Midwifery Accreditation Council for the occupation of Registered Nurse relevantly specifies:
“The applicant has completed the following education to gain Australian / New Zealand registration:
· Diploma from Seventh-Day Adventist School of Nursing, Nigeria
· Bachelor Degree from Curtin University, Australia”
On the basis of the evidence before it, the Tribunal is satisfied that the applicant is entitled to points under item 6D72 for the award of at least a Bachelor degree by an Australian educational institution.
Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
Ten points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.
During the hearing, the applicant confirmed that he did not complete a specialist educational qualification and, as such, he is entitled to no points under this part.
Part 6D.8 – Australian study qualifications
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 reg 1.15F of the Regulations. To meet the Australian 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.
The applicant provided, with his application, evidence of having completed a Bachelor of Nursing Science degree from Curtin University in Australia. The delegate’s decision records that on the basis of this evidence, the applicant meets the Australian study requirement, as required by reg 1.15F.
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
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.
In relation to this part, the Minister has specified, in IMMI 12/020, the National Accreditation Authority for Translators and Interpreters (NAATI) as a credentialled community language body; and the standard for the purposes of paragraphs part 6D.9 as accreditation at the paraprofessional interpreter or translator level or above.
The applicant made no claims and nor is there any evidence that he qualifies for any points in this part.
Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in designated regional area qualification
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 reg 1.15F), the location of the campus(es) at which the study was undertaken was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.
The applicant did not claim points for study undertaken in a designated regional area, and the delegate awarded no points for this part. However, amendments to this Part commenced on 16 November 2019 and apply to all applications not finally determined at that date as no transitional arrangements were specified.
The applicant undertook study at Curtin University in Western Australia, a campus in a designated regional area (Bentley, Western Australia 6102), and also lived in a designated regional area (Cockburn, Western Australia 6164) while undertaking the study. The study undertaken was not by way of distance education.
Therefore, the applicant is entitled to 5 points under this part.
Part 6D.11 – Partner qualifications
Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten 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 and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.
The Tribunal explained to the applicant at the hearing that from 16 November 2019, additional points are available to an applicant if their spouse or de facto partner can demonstrate, in a prescribed way, competent English at the time of invitation.
There is no claim made, and nor is there any evidence that the secondary applicant qualifies for any points under this part.
Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
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 regional area nomination or sponsorship qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa or a Subclass 491 (Skilled Work 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
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  25 points
6D.2 - English language  10 points
6D.3 - Overseas employment experience  5 points
6D.4 - Australian employment experience  5 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  15 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  5 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in designated regional area qualification        5 points
6D.11 - Partner qualifications  0 points
6D.12 - State or Territory nomination  0 points
6D.13 - Designated regional area nomination or sponsorship qualifications 0 points
Total points  70 points

The applicant’s assessed score under the points system is therefore 70 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 18/067. 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?
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 75 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.
For the above reasons, the applicant is entitled to a maximum of 70 points under the points test. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl 189.224. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.
The secondary applicant applied for her visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the visa, it follows that the Tribunal must also affirm the decision in respect of the secondary applicant.
The Tribunal acknowledges that the applicant is an experienced Registered Nurse working in Aged Care and highly valued by his employer of more than 5 years. The Tribunal also notes that the secondary applicant holds an overseas nursing qualification; has applied for Nurses’ registration; and is currently working as an Assistant in Nursing at the Fiona Stanley Hospital in Western Australia. The applicants have lived in Australia for over 7 years and would like to continue helping the Australian community in the healthcare sector. Regrettably, as discussed during the hearing, the Tribunal does not have any discretion to waive the requirements of cl.189.224 (or cl.189.311), as the criteria contains no discretionary factors, such as compassionate and/or compelling factors, for waiving its requirements.
DECISION
The Tribunal affirms the decision not to grant the visas.
Nicola Findson
Member

[2022] AATA 5030

7 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review