Alsheri (Migration)

Alsheri (Migration) [2020] AATA 4508 (28 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdulrahman Alsheri
CASE NUMBER:  1901662
HOME AFFAIRS REFERENCE(S):          BCC2018/2380563
MEMBER:Karen Synon
DATE:28 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 28 October 2020 at 11:33am
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – points test – overseas employment – periods in Australia and other countries not working in home country – studying in Australia on scholarships from government of home country – partner qualifications – points for not having spouse or de facto partner – score passes points test but not score stated in invitation to apply for visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350
Migration Regulations 1994 (Cth), rr 1.15EA, 1.15I, 2.26AC, 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 10 January 2019 to refuse to grant the applicant a visa under s.65 of the Migration Act 1958 (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 applicant was invited to apply for the visa on 18 April 2018 and applied for the visa on 3 June 2018. 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 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.224.
The applicant appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. The hearing was held via video. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages although the applicant was able to communicate effectively in English.
The Tribunal records that it found the applicant to be intelligent and honest and accepts he has primarily applied for this permanent visa so that he is eligible to apply for work in his occupation in hospitals, who require employees to be permanent residents or citizens. He also must keep applying for short term study visas here.
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 (r.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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.
In the present case, the applicant nominated the occupation of ‘Physicist (medical physicist only)’.
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 34. 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.
Superior English is defined in Regulation 1.15EA to be a person who achieved a specified score in a specified English language test conducted in a specified period. Superior English requires an operational command of English with the ability to use and comprehend complex language well and understand detailed reasoning. Relevantly, legislative instrument IMMI 15/005 specifies a Pearson PTE Academic score of least 79 in each of the four test components of speaking, reading, writing and listening.
The applicant provided, with his application, the results of a Pearson PTE Academic English test undertaken on 19 July 2016 with results of speaking – 90, reading - 90, writing – 84 and listening – 90.
Therefore, the applicant is entitled to 20 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 at least 36, 60, or 96 months in the 10 years immediately before that time.
In support of his claim for overseas employment qualifications of 5 years in the last 10 years, the applicant provided a letter titled ‘Certification’ issued by the General Directorate of Health Affairs at King Fahad Hospital Al-Baba, Saudi Arabia. It is dated 24 May 2016 and states that the applicant was employed as a Medical Physicist from 26 July 2010 until the date of the letter.
The delegate refused the award of points for this part on the basis that:
In your application lodged on 03 June 2018 you have claimed 5 years of overseas work in the last 10 years.
Position: Medical Physicist Country: SAUDI ARABIA
Date from: 26 Jul 2010 to time of invitation
Following documents were provided in support of your employment claims:
·Employment Certificate dated 24/05/2016
No evidence of pay has been received to date
The Employment Certificate dated 24/05/2016 states that you worked in the Medical Imaging Department from 26 July 2010 to now (equivalent 208 Hours) as a Medical Physicist.
208 hours equivalent makes 20 hours of work per week for 10 weeks and 8 hours.
According to our records you were not in Australia during the following dates. Hence, the periods that you were in Australia, you are not able to claim as working in Saudi Arabia.
·July 2010 to December 2010 (5 months and 5 days) Saudi Arabia
·January 2011 to 19 September 2011 (8 months and 19 days) Saudi Arabia
·October 2012 to December 2012 (2 months and 4 days in Saudi Arabia as you were in Australia from 20 September 2011 until 26 October 2012)
·January 2013 to 26 February 2013 (almost 2 months as you arrived back in Australia on 27 February 2013)
·14 June 2014 to 25 June 2014 (month and 11 days in Saudi Arabia)
·January 2015 to 17 February 2015 (1 month and 17 days in Saudi Arabia, you arrived back in Australia on the 18 February 2015)
·18 July 2016 to 22 July 2016 (on form 80 you have stated that you were in Jordan during this time hence no working days in Saudi Arabia)
·2017 - Our records show that you were in Australia
·08 January 2018 to 24 February 2018 (1 month 16 days in Saudi Arabia, you arrived back in Australia on the 25 February 2018)
·02 June 2018 to 05 June 2018 (on form 80 you have stated that you were in New Zealand)
Which brings total time for claimed work in Saudi Arabia to (sic) from 26 July 2010 to date as 22 months (with no supporting evidence of remuneration and employment certificate stating employed hours as 208).
Following an assessment of your overseas skilled employment experience, I am not satisfied that you were employed in your nominated skilled occupation, or a closely related skilled occupation, for at least 36 months in the 10 years immediately before invitation to apply for this visa.
With his application for review the applicant provided a translated document titled ‘Administrative Definition Certificate’ issued by the Ministry of Health, Kingdom of Saudi Arabia. It states that the applicant’s service start date was 25/7/2010 and he is a Ministry of Health employee up until the certificate date. The applicant also provided his skills assessment issued by the Australasian College of Physical Scientists & Engineers in Medicine. The applicant did not provide any pay slips or other evidence of his claimed overseas employment. Nor did he dispute any of the delegate’s findings as to the lengthy periods he had been outside Saudi Arabia during his claimed employment at the King Fahad Hospital.
Relevantly on 13 October the Tribunal wrote to the applicant:
The Tribunal has considered the document provided with the application for review titled ‘Administrative Definition Certificate’ which was issued by the Ministry of Health, Kingdom of Saudi Arabia which states your period of service 25/7/2010 until 24 May 2016. However you have not provided any submission addressing the lengthy periods during that tenure when you were not in Saudi Arabia (these dates are clearly documented in the Department decision), nor any other evidence to support your claimed oversea employment experience such as pay slips, bank records of renumeration etc. Should you wish to provide such evidence for consideration and discussion during the hearing on 27 October, please do so by 20 October.
In response on 21 October 2020 the applicant provided:
·A statement detailing his previous immigration/travel history, credibility and personal circumstances;
·His positive skills assessment for occupation of Physicist (Medical Physicist) issued by the Australasian College of Physical Scientists & Engineers in Medicine dated 9 April 2013;
·A Reference letter from the Department of Nuclear Medicine/Radiology at the King Fahad Hospital, Al Baha KSA from Dr S.K. Bakde, Acting Chief of Radiology;
·Kingdom of Saudi Arabia, Ministry of Health salary certificate letter dated 16 October 2020 (original and certified translation);
·Commonwealth Bank Complete Access statements showing all payments (up until the time of invitation on 18 April 2018);
·A document titled ‘Scholarship Financial Guarantee’ issued by the Ministry of Health, Saudi Arabia and signed by Saud Bader Almutairi, Director General of Training & Academic Aff’. This is dated 14 February 2020 and states:
This is to state that the Ministry of Health, Kingdom of Saudi Arabia, has agreed to sponsor financial support to [the applicant] for PHD in Science as stipulated by the rules and regulations stated in the Scholarship Policy. The expenses will include tuition fees, living expenses
The Tribunal discussed with the applicant his claim of overseas employment experience. He explained that he has been on scholarships to further his education in Australia while still being an employee of the Ministry of Health. He first did an English course in 2014 and has completed several other courses since, including a Graduate Diploma in Science and a Masters. He has been accepted into a PhD program commencing in 2021 related to nano technology. As documented in the evidence provided, the Saudi Ministry of Health pays his fees, living expenses, insurance and other sundry expenses. He did work in his occupation in Saudi Arabia for 17 or 18 months before coming to Australia. He only returns to Saudi Arabia for holidays. His sister is also in Australia on a scholarship from her Saudi Arabian university employer.
The applicant contends that he is still employed overseas, despite primarily being based in Australia, as a student, because his employer is paying him to study and he is still expected to do work and estimates he works one or two hours a day answering emails which seek his opinion. Also, his skills assessment from the Australasian College of Physical Scientists and Engineers in Medicine, was based in part, on his claimed employment as a Medical Physicist at the King Fahad Hospital from 26 July 2010 to 24 May 2016.
However, as explained during the hearing, the Tribunal does not consider that, despite him technically being employed by the Ministry of Health, while he pursues further study in Australia, he is, or was up until the time of invitation, employed outside Australia in his nominated skilled occupation or a closely related skilled occupation. This is because the 17 or 18 months when he was employed as a medical physicist does not reach the minimum period of 36 months for which points are available and, by his own evidence, after this he has resided in Australia except for visits back to his home country. The fact that he has been regularly paid during this period does not amount to evidence of his employment but to his continuing scholarship payments. While the Tribunal is prepared to accept the applicant’s oral evidence that he answers emails while in Australia, this appears incidental and does not amount to employment overseas such that points could be awarded.
Therefore, the applicant does not meet the minimum period of at least 36 months overseas employment experience in the ten years immediately before the invitation to apply for the visa was issued.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant made no claim to be eligible for any points for Australian employment experience.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no 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 5. 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 at least 12 months in the immediately preceding 48 months. Legislative Instrument IMMI 12/029 specifies: the Professional Year Programs provided by the Institute of Chartered Accountants, the Certified Practising Accountants Australia and the Institute of Public Accounting; the Professional Year program provided by the Australian Computer Society Institute; and the Professional Year Program provided by Engineers Australia.
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 r.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.
‘Degree’ is defined in reg 2.26AC(6) as follows:
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.
The Tribunal is satisfied, on the basis of the information before it on the Department file that, at the time of invitation, the applicant had completed a Bachelor of Medical Physics at Umm Alqura University in Saudi Arabia.
This qualification was recognised in applicant’s successful skills assessment issued by the Australasian College of Physical Scientists and Engineers in Medicine on 9 April 2018 as being of a recognised standard.
As the applicant has attained the award of at least a bachelor qualification, by another educational institution, that is of a recognised standard he is entitled to 15 points under part 6D72(b).
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 r.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.
There is no evidence before the Tribunal that the applicant completed 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 r.1.15F of the Regulations. To meet the 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 has made no claims and nor is there any evidence that he qualifies for any points in this part however, during the hearing, he referred to the fact that the delegate appears to have given him 5 points under this part. Referring to the primary decision, the Tribunal notes that, in table format on page nine, the delegate recorded 5 points however the text is clear that no points were awarded and, in the summary on page three, no points were awarded under this part. The Tribunal invited the applicant to provide oral evidence that he is eligible for points under this part and, after some discussion, he conceded that he did not satisfy the Australian study requirement at the time of invitation on 18 April 2018, although he has subsequently completed a Masters and, next year, will commence his PhD.
As the Australian study requirement had not been met at the time of invitation, the applicant is entitled to no 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 has made no claims and nor is there any evidence that he qualifies for any points in this part. As such he is entitled to 0 points.
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 r.1.15F), and that study was undertaken, and the applicant lived, in a designated regional area. Distance education does not qualify as study for these purposes.
The applicant has made no claims and nor is there any evidence that he qualifies for any points in this part. As such he is entitled to 0 points.
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 factor 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 / 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/partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.
Item 6D112 provides for 10 points to be awarded to the applicant if they do not have a spouse or de facto partner, or they have a spouse or de facto partner who is an Australian permanent resident or an Australian citizen. This provision commenced on 16 November 2019 and applies to all applications not finally determined by then.
The visa application form records that the applicant was then single and had no spouse or de factor partner. A submission provided to the Tribunal on 29 September 2020 confirms this is still the case.
Therefore, the applicant is entitled to 10 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. 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  20 points
6D.3 - Overseas employment experience  0 points
6D.4 - Australian employment experience  0 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  0 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in designated regional area qualification  0 points
6D.11 - Partner qualifications  10 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 60 points: Legislative Instrument IMMI 12/017. 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.
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.
DECISION
The Tribunal affirms the decision not to grant the visa.
Karen Synon
Member

[2020] AATA 4508

28 October 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness