Burchiella (Migration)

[2024] AATA 1599

Burchiella (Migration) [2024] AATA 1599 (21 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Francesca Maria Burchiella

CASE NUMBER:  2209548

HOME AFFAIRS REFERENCE(S):          BCC2021/1275681

MEMBER:P. Maishman

DATE:21 May 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.

Statement made on 21 May 2024 at 12:33pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Community Worker – applicant’s assessed score is 75 points – applicant has not achieved the score stated in the invitation to apply for the visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 190.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2022 to refuse to grant the applicant a Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) 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.

2. The applicant was invited to apply for the visa on 25 May 2021 and applied for the visa on 20 June 2021. The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated 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 190.214.

3. The applicant appeared before the Tribunal on 8 April 2024 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

6. 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).

7. 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 19/051. In the present case, the applicant nominated the occupation of Community Worker (ANZSCO 411711) which is specified by LIN 19/051.

   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

8. 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.

9. At the time of invitation the applicant was aged 26. Therefore, the applicant is entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

10. 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.

11. The applicant has provided documentary evidence with the visa application of a Pearson Test of English Academic (PTE) score, confirming she undertook the test on 5 January 2021.  The applicant achieved, in each of the four components of the PTE a Proficient level of English; Listening score 69; Reading score 69; Written score 73; and Speaking score 71.  The applicant has demonstrated Proficient English as defined in reg 1.15D of the Regulations.

12. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

13. 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.

14. The applicant made no claim for points for having been employed outside Australia in the occupation of Community Worker or a closely related skilled occupation in the 10 years before the invitation.

15. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

16. 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 term ‘employed’ is defined by reg 2.26AC(6) as ‘engaged in an occupation for remuneration for at least 20 hours a week’.

17. The applicant claimed 5 points for at least 12 months Australian employment with her employer, Life Without Barriers, as a disability community worker from 8 Jan 2020.

18. The decision record details the delegates finding that the applicant’s employment was less than 20 hours per week, and that she was not assessed as having suitable skills for the nominated skilled occupation until 30 November 2020. The delegate was not satisfied the applicant had skilled employment experience in her nominated skilled occupation, or a closely related skilled occupation, for at least 12 months and attributed no points under this item.

19. The Department’s file contains an employment contract dated 13 July 2020 confirming the applicant’s employment as a Disability Support Worker from 8 January 2020 providing a work schedule of ordinary daily hours totalling 9 hours per week. Hayley Daniels, team leader with the employer, confirmed by letter dated 14 January 2021 the applicant is a community support worker since 8 January 2020 working an average of 20 hours per week. Ms Daniels provided a further letter dated 21 April 2022 confirming the applicant gained over two years’ experience between 8 January 2020 and 28 March 2022 as a qualified community support worker. A payslip for the fortnight 19 April 2021 to 2 May 2021 indicates the applicant was paid in that period for 28 hours worked.          

20. The applicant gave the Department a testamur certifying the applicant fulfilled the requirements for a Diploma of Community Services conferred on 30 November 2020. On 11 February 2021 the relevant assessing authority, Australian Community Workers Association (ACWA), assessed the applicants skills as suitable for migration purposes under the ANZSCO Code 411711 Community Worker from 30 November 2020.         

21. The applicant told the Tribunal her employer is a not for profit organisation and could not engage her for more than 20 hours per week. The applicant considers she did the same role prior to obtaining her Diploma of Community Services and subsequent skills assessment as she had prior to obtaining her qualification.

22. The applicant’s employment contract and payslip are definitive and contemporaneous evidence of the applicants basis for employment and indicate she did not work at least 20 hours per week in the nominated occupation. Ms Daniels letter gives an approximation of the applicant’s hours worked without any basis for how the approximation was reached. The Tribunal attaches more weight to the applicant’s employment contract and payslip than to the letters provided by Ms Daniels.

23. The Tribunal is not satisfied the applicant has established she was employed, as defined, in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least for at least 12 months, prior to being invited to apply for the visa.  

24. 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

25. 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.

26. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0. 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

27. 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.

28. The applicant has made no claim under Part 6D.6.

29. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

30. 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.

31. The applicant provided documentary evidence that she obtained a Diploma of Community Services awarded by Acknowledge Education, an Australian educational institution located in Perth. The duration of the course was from 28 July 2019 to 30 November 2020.

32. At the time of invitation, the applicant met the requirements for the award of at least a bachelor degree (as defined in reg 2.26AC(6)) by an Australian educational institution.

33. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.7A – Specialist educational qualifications

34. 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.

35. The applicant has made no claims and provided no evidence of meeting the specialist educational qualification requirement specified in Part 6D.7A at the time of the invitation to apply.

36. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

37. 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.

38. The applicant has provided evidence with her application that she was awarded a Diploma of Community Services awarded by Acknowledge Education/Stott’s College, an Australian educational institution located in Perth. The delegate accepted the course met all the requirements.  

39. The Tribunal has considered all relevant matters, with reference to reg 1.15F(2), reg 2.26AC(6) and is satisfied that the qualification was obtained as a result of a course that was a registered course that was completed in a total of at least 16 calendar months as a result of at least 2 academic years study (reg 1.03), for which all instruction was in English, while the applicant held a visa authorising study.

40. 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

41. 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.

42. The applicant has made no claims and provided no evidence of having a qualification in a particular language at the time of the invitation to apply.

43. Therefore, the applicant is entitled to no points under this part.

    Part 6D.10 – Study in designated regional area qualification

44. 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 and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.

45. The applicant’s Australian study requirements were met at Stott’s College located in Perth 6004 and the applicant resided in postcode 6164 during her study. There is no evidence to suggest the study was undertaken by distance education. The relevant instrument LIN 20/292 specifies these postcodes to be designated regional areas.   

46. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.11 – Partner qualifications

47. 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.

48. The applicant declared she was in a de facto partner relationship and provided a notification from the Department confirming he was granted a permanent resident visa valid from 23 February 2018.   

49. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

50. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa.

51. There is no evidence before the Tribunal to suggest that the nomination made by the State of Western Australia has been withdrawn.

52. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated regional area nomination or sponsorship qualifications

53. 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

54. 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  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  10 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  5 points

    6D.13 - Designated regional area nomination or sponsorship qualifications   0 points

    Total points  75 points

55. The applicant’s assessed score under the points system is therefore 75 points.

56. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. 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?

57. 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 80 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.

58. For the above reasons, the applicant is entitled to a maximum of 75 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 190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

59. The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.

    P. Maishman
    Member