CARAMBAS (Migration)

Case •

[2020] AATA 5094

•

21 August 2020

CARAMBAS (Migration) [2020] AATA 5094 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Adrian CARAMBAS
Ms Michelle Estanislao
Miss Sydney Madison Carambas

CASE NUMBER:  1824500

HOME AFFAIRS REFERENCE(S):          BCC2017/3995615

MEMBER:Kira Raif

DATE:21 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

·cl.189.224 of Schedule 2 to the Regulations.

Statement made on 21 August 2020 at 10:48am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicant has achieved the qualifying score– applicant satisfies the points test criterion– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 189.224

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 1 August 2018 to refuse to grant the applicants visas under s.65 of the Migration Act 1958 (the Act).

  2. The first named applicant (the applicant) was invited to apply for the visa on 18 October 2017 and applied for the visa on 29 October 2017. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.224.

  3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Relevant law

  4. 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). 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 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’.

  5. 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).

  6. 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).

    Does the applicant have the qualifying score applying the law in force at the time of the Tribunal’s decision?

  7. In light of the amendments made by the Migration Amendment (New Skilled Regional Visas) Regulations 2019, the Tribunal first assessed the applicant’s score at the time of its decision.

    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. The applicant was born in September 1980 and invited to apply in October 2017. At the time of invitation the applicant was aged 37. Therefore, the applicant is entitled to 25 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 provided with his application the results of a PTE test in which he achieved the score of 90 in each of the four test components. The Tribunal is satisfied the applicant has superior English and is entitled to 20 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

  12. 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.

  13. The applicant provided evidence of his employment at Amang Rodriquez Memorial Medical Centre between February and November 2009, between September and December 2010 and between October 2011 and January 2013. The Tribunal finds that such employment amounts to 2 years and 3 months. The Tribunal is not satisfied the applicant had been employed outside Australia for a period totalling at least 36 months in the 10 years before the invitation. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

  14. 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.

  15. The applicant stated in his application that he was employed as an Assistant in Nursing at Bupa North Rocks between November 2013 and August 2017. The delegate found that employment as an Assistant in Nursing was not in the applicant’s nominated occupation or a closely related one. The delegate noted that the applicant did not his AHPRA registration until June 2017 after he completed a bridging program and found that the applicant’s employment was not at the skill level required for the award of points.

  16. The applicant subsequently provided evidence of his employment at Minchinbury Community Hospital and the applicant presented further evidence of that employment to the Tribunal. However, the applicant’s evidence is that he commenced that employment from June 2017, for a period not exceeding four months by the time of the invitation. The Tribunal finds that such employment did not amount to a period totalling at least 12 months.

  17. The Tribunal has considered the applicant’s Australian employment. The Tribunal does not consider that employment as an Assistant in Nursing was at the level required for the nominated occupation. This occupation is in the ANZSCO Group 4, while the nominated occupation is in ANZSCO Group 2. The Tribunal is also mindful that according to ANZSCO, registration or licensing is required for the occupation of a registered nurse and the applicant did not obtain the registration, and therefore the ability to work at the skilled level required by the occupation, until June 2017. The Tribunal is not satisfied the applicant’s employment as an Assistant in Nursing was in his nominated occupation or a closely related one.

  18. The Tribunal finds that the applicant’s subsequent employment as a nurse was for a period less than 12 months and cannot be counted for the purpose of this Part. 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

  19. 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.

  20. 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

  21. 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.

  22. The applicant does not claim to have completed a prescribed course. The Tribunal is not satisfied the applicant completed a professional year. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

  23. 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.

  24. The applicant stated in the application that he holds a Bachelor of Nursing from the Philippine Women’s University, which was completed between June 2006 and April 2008. The applicant provided with the application evidence of the award, letter of completion and his academic transcripts. The delegate accepted that this award was equivalent to an Australian degree and the Tribunal finds that the applicant had met the requirements for the award of at least a bachelor qualification that is of recognised standard. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

  25. 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.

  26. There is no evidence that het applicant met the requirements for the award of a Masters by research or a doctoral degree. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

  27. 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.

  28. The applicant has not provided evidence of having met the Australian study requirement. 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

  29. 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.

  30. There is no evidence that the applicant had a language qualification accredited or awarded by a specified body to the specified standard. Therefore, the applicant is entitled to no points under this part.

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

  31. 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.

  32. The applicant does not claim to have completed study in a designated regional area. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner qualifications

  33. 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.

  34. The applicant stated on the application form that his partner had completed a language test in the 36 months before the application was made and that she has Competent English. Ms Estanislao provided with the application evidence of having completed a PTE Academic test on 11 October 2017. She achieved the score of at least 50 in each test component. Having regard to these results, the Tribunal is satisfied the applicant’s spouse had Competent English. Under the current provisions, the applicant is entitled to 5 points under this Part.

    Part 6D.12 – State or Territory nomination qualifications

  35. 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

  36. 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

  37. 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  5 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination or

    sponsorship qualifications   0 points

    Total points  65 points

  38. The applicant’s assessed score under the points system is therefore 65 points.

  39. The relevant pass mark at the time of the Tribunal’s decision is 60 points (LIN 19/210) and the Tribunal finds that the applicant has achieved the qualifying score. Further, the primary decision record indicates that the score in the invitation was 65 points and the applicant has achieved that score.

    Conclusion

  40. For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.189.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

  41. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member


Key Legal Topics

Areas of Law

  • Immigration

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Jurisdiction

  • Statutory Construction

  • Procedural Fairness

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