Baguio (Migration)

Baguio (Migration) [2023] AATA 921 (3 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Micael Aidria Baguio
CASE NUMBER:  2014055
HOME AFFAIRS REFERENCE(S):          BCC2020/1173039
MEMBER:Wan Shum
DATE:3 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 03 April 2023 at 12:02pm
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points based visa – occupation of Registered Nurses (Medical) – proficient English – Australian and overseas employment experience – relevant work experience since application – skills assessment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, Schedule 2, cl 189.214; Schedule 6D, rr 1.15, 2.26
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 3 September 2020 to refuse to grant the applicant a Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa 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 applicant was invited to apply for the visa on 13 March 2020 and applied for the visa on 15 March 2020. The criteria for the grant of a Subclass 189 visa are set out in Part 189 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 applicant appeared before the Tribunal by videoconference using Microsoft Teams on 1 March 2023 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 LIN 19/210. In the present case, the applicant nominated the occupation of Registered Nurses (Medical).
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 30. Therefore, the applicant is entitled to 30 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.
For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, she had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).
The applicant submitted a PTE Academic test taker score report with a test date of 1 March 2020, which is before she was invited to apply, and indicates that the applicant obtained 80 in listening, 79 in reading, 90 in speaking and 77 in writing.
Based on these results, the applicant has proficient English (as defined in r.1.15F). She is therefore 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.
On the visa application form, the applicant claimed to have been employed for at least 60 months in the nominated occupation or closely related skilled occupation in the past 10 years overseas and completed the section of the form as follows:
Position: Registered Nurse
Employer name: Bernardino General Hospital
Country: PHILIPPINES
Date from: 15 January 2011
Date to: 28 June 2016
The applicant has provided a copy of her registration as a Nurse in the Philippines, which occurred in June 2009. Having considered the evidence of employment provided, the Tribunal accepts that the applicant was employed for the claimed period in her nominated skilled occupation, which means that she was employed in the Philippines in her nominated occupation for at least 60 months in the 10 years immediately before invitation for this visa.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 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.
On the visa application form, the applicant claimed to have been employed for at least 12 months in the nominated occupation or closely related skilled occupation in the past 10 years in Australia.
The section of the form was completed as follows:
Position:                 Aged Care Administration Assistant
Employer name:       Feros Care
Country:                 AUSTRALIA
Date from:              26 Sep 2016
Date to:                 28 Sep 2018
Description of duties: Knowledge of aged care assessment process, national      disability insurance scheme aged care organization processes.      Management of the learning management system under the                learning and development team. Conducts audit for mandatory     e-learning of staff to comply with WHS standards.
Position:                 Assistant in Nursing
Employer name:       Opal Aged Care
Country:                 AUSTRALIA
Date from:              1 Dec 2018
Date to:                 31 Oct 2019
Description of duties: Assists residents with their personal care needs, mobility and   communication needs. Follows therapy plans such as      interventions to assist with behavioural management of          patients with dementia. Building effective relationships with   patients through clear communication and empathy.
Position: Registered Nurse
Employer name: Montefiore Jewish Home Randwick
Country: AUSTRALIA
Date from: 28 Jan 2020
Description of duties: Provides person-centred nursing care, medication administration and management, Safe behavioural management and health emergency response in acute    deterioration in residents who had falls and infections.          Oversees safe and effective care work by other categories of           health workers.
In response to the questions of whether the applicant is claiming points for this employment, the applicant responded “no” in respect of the administrative position, and “yes” to the other two positions. The applicant’s response to the questions whether this employment is related to the nominated position was “Yes” in respect of each of these positions.
The delegate did not consider the positions of Administration Assistant and Assistant in Nursing could be counted on the evidence provided and considered that she was not entitled to points under this Part because the period of employment in the nominated occupation or closely related skilled occupation was less than 12 months in total.
On review, the applicant is seeking for the period where she worked as an Assistant Nurse to be counted towards her total period of Australian work experience believing that she was working in a closely related skilled occupation.
In considering the employment claims, the Tribunal notes that the applicant was registered as a nurse in Australia from 11 November 2019 and obtained a skills assessment from 3 February 2020, which refers to her Bachelor Degree from Far Eastern University, Philippines and Graduate Certificate from Southern Cross University, Australia as educational qualifications which have been recognised by ANMAC as being commensurate with at least an Australian Bachelor degree for the purposes of awarding points for qualifications under the Points test. In respect of employment which would equate to work at an appropriately skilled level as a Registered Nurse/Midwife, the assessment lists only her employment from 15 January 2011 to 28 June 2016, as 254418 Registered Nurse (Medical) for Bernardino General Hospital, Quezon City, Philippines.
ANZSCO sets out the duties and skill level of ‘Registered Nurses’ as being commensurate with a bachelor degree or higher qualification and in some instances relevant experience and/or on the job training may be required in addition to the formal qualification.
The evidence presented includes a statement of service issued by Feros Care dated 21 September 2018 and letter from Opal Specialist Aged Care dated 10 October 2019 but did not include information about the duties performed. However, neither of these occupations are “skilled occupations” as defined in the Regulations.
During the hearing, confirmed that she was not employed as a Registered Nurse in Australia until 6 January 2020. Prior to that she had worked at Opal Specialist Aged Care as a ‘Nursing Assistant’, which involved providing personal care to the residents of an aged care home. The applicant acknowledged that she had made a mistake in claiming employment as an Assistant in Nursing. The applicant sought to have her work experience from August 2020 at Prince of Wales Hospital, Randwick, taken into account. The Tribunal explained that the employment needed to have been before the time of invitation to apply.
“Skilled occupation” is a defined term in the Regulations and refers to an occupation that is specified by the Minister, in this case LIN 19/051, and that for Subclass 189 applications, it is the Medium or Long Term Skilled Occupation List that is relevant. The occupations that refer to “nurse” in the title are for registered nurses, in a specialisation such as aged care, and/or enrolled nurse, nurse practitioner but not assistant nurse.
Having regard to ANZSCO, it appears to the Tribunal that her position at Opal Specialist Aged Care aligns to the occupations under Unit Group 4233 ‘Nursing Support and Personal Care Workers’ specifically the occupation of ‘Personal Care Assistant’. The Tribunal notes its view is supported by the Australian College of Nursing (ACN) who defines an assistant in nursing as a “health care worker who supports the delivery of nursing care by assisting people with personal care and activities of daily living. Similar titles may include but are not limited to “Aged Care Worker (ACW), Personal Care Assistant (PCA), Care Support Employee (CSA) and Health Services Assistant”.[1] The Tribunal notes that certain other occupations, such as community worker, are listed in the instrument but in the Short-term Skilled occupation list which means it does not meet the definition of “skilled occupation”. The occupation of assistant in nursing (however titled) are not specified in Schedule 1 of the applicable instrument and are therefore not “skilled occupations” as defined.
[1] (accessed 1 March 2023). According to the Australian Nursing and Midwifery Federation, the assistant in nursing assists registered nurses and enrolled nurses in the provision of delegated aspects of nursing care within the limits specified by their education, training and experience. At all times, assistants in nursing work within a plan of nursing care developed by the registered nurse, and work under the supervision and direction of a registered nurse and, where deemed appropriate by the registered nurse, an enrolled nurse. (accessed 1 March 2023).
The applicant referred to her continued employment as a registered nurse since the invitation and application were made, which the Tribunal accepts on the evidence provided. While that employment would no doubt reflect that the applicant has the skills and experience for the occupation of Registered Nurse (medical), the Tribunal is unable to count this period of employment for the purposes of this Part as the relevant point in time for calculating the total length of employment in Australia in the nominated skilled occupation or a closely related occupation was at the time of invitation. The Tribunal has no power or discretion to take into account employment after the period of time of invitation ceased. On the evidence before it, the Tribunal finds that the applicant was employed as a Registered Nurse by Montefiore Jewish Home Randwick from 6 January 2020 until the time of invitation to apply for the visa which was from 13 March 2020 for 60 days. This period of work was for less than 12 months.
Therefore, subject to consideration of Part 6D.5, the applicant is not entitled to 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 applicant does not have qualifications in both Parts 6D.3 and 6D.4 and is not entitled to 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. The relevant instrument (LIN 18/170) specifies that the Professional Year Program provided by: the Australian Computer Society which is available to information technology graduates; (b) Chartered Accountants Australia and New Zealand, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates; by Engineers Australia which is available to engineering graduates.
The applicant indicated that she did not complete a professional year. Therefore, she is not entitled to 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.
The applicant completed a Master of Business Administration in Health Services Management in Australia for a duration of 2 years and a Graduate Certificate in Australian Nursing both at Southern Cross University, Gold Coast campus. The masters degree was completed on 14 February 2019.
The Bachelor qualification was recognised by Australian Nursing & Midwifery Accreditation Council (ANMAC), the relevant assessing authority for the applicant’s nominated skilled occupation, as being suitable for the occupation of Registered Nurse (medical) as at 3 February 2020.
The Tribunal finds that the applicant was awarded a Master degree by an Australian educational institution, and is therefore entitled to 15 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 meets this requirement on the basis of her Masters study which was undertaken in Australia and which she completed on 14 February 2019. She 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.
The applicant is not claiming, and she is not entitled to, points under this Part.
Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area 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), 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. The applicant has provided evidence of having completed study at Southern Cross University’s Gold Coast campus which has postcode 4225 and that she lived in this postcode from 3 July 2016 to 30 June 2019. The Tribunal finds that she has studied and lived in regional Australia or a low population growth area and 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 facto 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 applicant had previously been awarded 10 points under this part as she did not have a spouse or de facto partner. The applicant advised the Tribunal that this had not changed. Given this, 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 had been invited to apply for such a visa on 14 May 2021, however she did not make an application. The invitation was clearly stated to be valid for 14 days from the date of the email, and has more than 14 days have passed, the Tribunal is of the view that the invitation has been effectively withdrawn. Given this, the applicant is 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  30 points
6D.2 - English language  10 points
6D.3 - Overseas employment experience  10 points
6D.4 - Australian employment experience  0 points
6D.5 - Aggregated employment  NA
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  10 points
6D.12 - State or Territory nomination  0 points
6D.13 - Designated regional area nomination or

sponsorship qualifications   0 points
Total points  85 points
The applicant’s assessed score under the points system is therefore 85 points.
At the time of the delegate’s and the Tribunal’s assessment the pass mark was 60 points. The applicant has achieved the qualifying score to pass the points test.
However, 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 95 points. This appears to have been based on a misunderstanding when lodging an expression of interest that her employment as an assistant nurse was in a closely related skilled occupation. It is somewhat unfortunate as she clearly exceeds the pass mark based on her skills in nursing. However, the applicant has not achieved the score stated in the invitation to apply for the visa, and therefore 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 Tribunal is cognisant of the impact of the visa refusal to the applicant’s continued employment with the NSW Government Health South Eastern Sydney Local Health District and that the applicant has skills that are specialised and she is considered a very valuable member of the team. The Tribunal notes further the comment that having to replace her would take months of training and have an impact on the services provided to NSW patients requiring dialysis treatment at Prince of Wales Hospital. The Tribunal further notes that the applicant had previously obtained nomination by the state of NSW but ultimately decided not to make an application for a Subclass 190 (Skilled - Nominated) visa. As indicated above, the Tribunal does not have power to exercise any discretion in this matter but the applicant may elect to seek for the Minister to intervene in her case which she can now do upon this decision being made.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Wan Shum
Member

[2023] AATA 921

3 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction