Chinhema (Migration)

[2017] AATA 1034

Chinhema (Migration) [2017] AATA 1034 (30 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Grenedy Chinhema

CASE NUMBER:  1612404

DIBP REFERENCE(S):  BCC2013/2004971

MEMBER:Mary-Ann Cooper

DATE:30 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 489 visa:

·cl.489.224 of Schedule 2 to the Regulations.

Statement made on 30 June 2017 at 11:57am

CATCHWORDS

Migration – Skilled Regional Sponsored (Provisional) visa – Subclass 489 – First Provisional Visa Stream – Points test – Remitted by consent – Tribunal failed to consider applicant’s employment – Achieved qualifying and invitation score

LEGISLATION

Migration Act 1958, s 65, 93, 94, 96(2), 350, 359(2), 359C, 360(3), 363A

Migration Regulations 1994, Schedule 2, cl 489.224, Schedule 6D, r 2.26AC, r 1.15I, r 1.15EA, r 1.15D, r 1.15F

CASES

Hasran v MIAC [2010] FCAFC 40

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 Immigration on 15 March 2014 to refuse to grant the applicant a Skilled - Regional Sponsored (Provisional) (Class SP) Subclass 489 (Skilled - Regional (Provisional) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa with two streams of which the ‘First Provisional Visa Stream’ is available to skilled applicants who 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 5 November 2013 and applied for the visa on 4 December 2013. The criteria for the grant of a Subclass 489 visa are set out in Part 489 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants who were invited to apply must satisfy the criteria for the ‘First Provisional Visa stream’. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.489.224.

3. The matter was remitted by consent to the Tribunal on the basis that the tribunal had erred in failing to consider the applicant’s employment at Belmore Nurse’s Bureau.

4. On 22 November 2016 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide information in writing about her relevant periods of employment.

5. The invitation was sent to the applicant’s authorised recipient at the last address provided in connection with the review and advised that, if the information was not provided in writing by 15 December 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information within the prescribed period and no extension was sought or has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal allowed some further time for the provision of the information and this is discussed below.

7. The applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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’.

10. 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 his or her 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).

11. 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 14/049. 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

12. 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.

13. At the time of invitation the applicant was aged 37. Therefore, she is entitled to 25 points under this part.

    Part 6D.2 – English language qualifications

14. 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.

15. For points under this part, the applicant needed to have, at the time of the invitation to apply for the visa, at least 7 for each of the four test components of speaking, reading, writing and listening in an IELTS test for ‘proficient English’ (as defined in r.1.15D) or at least 8 for each of the test components in an IELTS test for ‘superior English’ (as defined in r.1.15EA).

16. The applicant provided the Department with the results of an IELTS test she had undertaken on 17 August 2013. The applicant obtained scores of 6.5 for listening; 6.0 for reading; 7.0 for writing; and 6.0 for speaking. The applicant confirmed at the hearing that she had not achieved higher scores in another test.

17. On the basis of the above, the Tribunal is not satisfied that the applicant has ‘Superior English’ as defined in r.1.15EA or that she has ‘Proficient English’ as defined in r.1.15D.

18. It follows that the applicant is not entitled to any points for this part.

    Part 6D.3 – Overseas employment experience qualifications

19. 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.

20. The applicant made no claim and there is no evidence before the Tribunal that she was employed outside Australia in her nominated skilled occupation or a closely related skilled occupation for any period before she was invited to apply for the visa.

21. Therefore, subject to consideration of Part 6D.5, the Tribunal finds the applicant is not entitled to points under this Part.

    Part 6D.4 – Australian employment qualifications

22. 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.

23. ‘Employed’ is defined to mean engaged in an occupation for remuneration for at least 20 hours a week: subregulation 2.26AC(6).

24. The applicant had claimed that she had worked in Australia in her skilled and closely related positions over the period of 10 years prior to her invitation to apply for the visa. 

25. Documents and material provided to the Department demonstrated various periods of the applicant’s employment in Australia as a Registered Nurse and as an Enrolled Nurse, the majority of it on a casual basis.

26. Further employment related material was provided both before and after the original hearing. It was not possible, on the basis of the content and bulk of the material provided, for the Tribunal to accurately assess relevant periods of employment and it requested, on three occasions, that the applicant summarise this information and provide the Tribunal with a list of the periods of time she was employed, as relevantly defined, as either an Enrolled Nurse or as a Registered Nurse. Notwithstanding these requests, the information was not provided in this manner.

27. On the material then before the Tribunal it was only able to confidently identify that the applicant was employed, as defined, in her nominated skilled occupation of Registered Nurse, for 5 weeks from 5 February 2013 to 5 November 2013 with ACSAG (Aged Care Services Australian Group). As an Enrolled Nurse, at a closely related skill level of EN level 2.2 and 2.3, that  the applicant had been ‘employed’, as defined, for 97 weeks, or over 12 months, in the 10 years immediately before that the date of her invitation.

28. Following the remittal of the application, the applicant’s representative provided calculations which it claimed represented periods in which the applicant had worked over 20 hours per week. A random sample of those claims, when compared against the actual employer records, indicated that this was not the case. It is also unclear from the submissions of the applicant’s representative at what level the applicant was working at these particular periods of time. Overall however the Tribunal has neither the time nor the resources to undertake such a forensic analysis and has decided the preferable decision is to give the applicant the benefit of the doubt and accept the claims made in relation to her previous employment in her skilled, or a closely related skilled occupation.

29. In these circumstances the Tribunal accepts that the applicant has been employed in her skilled occupation, or a closely related skilled occupation, for over 36 months, in the 10 years immediately before that the date of her invitation.

30. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

    Part 6D.5 - Aggregating points for employment experience qualifications

31. 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.

32. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10. As this is less than 20 points, the applicant is not entitled to any points under this part.

    Part 6D.6 – Australian professional year qualifications

33. 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.

34. There is no claim or evidence before the tribunal that the applicant had completed a ‘professional year’ in Australia in the 48 months before the time of invitation to apply for the visa.

35. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.7 – Educational qualifications

36. 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.

37. Documents on file confirm that the applicant was awarded a Bachelor of Nursing from the RMIT University, Melbourne in November 2012. The Tribunal is satisfied that the applicant has met the requirements for the award of at least a Bachelor degree by an Australian educational institution.

38. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

39. Five 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 master’s 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.

40. There is no claim or any evidence before the Tribunal that the applicant has completed a specialist educational qualification as defined.

41. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.8 – Australian study qualifications

42. 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.

43. Documents on the Department’s file confirm, as noted above, that the applicant completed a Bachelor of Nursing in Melbourne at RMIT University. On the basis of this and other evidence on the Department’s file, and the previous oral evidence of the applicant, the Tribunal is satisfied that she has completed a degree for award by an Australian educational institution as a result of completing a registered course in a total of at least 16 months; that was completed as a result of 2 academic years study; and for which the instruction was in English. The evidence also satisfies the Tribunal that the applicant undertook the study while the holder of a student visa.

44. Documents on the Department’s file confirm that the applicant completed a Bachelor of Nursing by RMIT University in November 2012 following a course of study conducted between 2010 and 2012. Information before the Tribunal indicates that the applicant was the holder of a student visa during that period authorising her to study. The Tribunal is also satisfied that the degree course is a registered course for which all instruction was conducted in English. The Tribunal finds, therefore, that the applicant meets the Australian study requirement in r.1.15F at the time of the invitation to apply for the visa.

45. Accordingly, based on this evidence, the Tribunal finds that she has satisfied the Australian study requirement as defined in the Regulations.

46. 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

47. 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.

48. The relevant instrument in this regard is IMMI 12/020 which specifies NAATI as a credentialed community language body and accreditation at the paraprofessional interpreter or translator level.

49. No claims have been made in relation to this part and there is no evidence of an award or accreditation by National Accreditation Authority for Translators and Interpreters (NAATI) as a paraprofessional interpreter or translator.

50. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

51. 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.

52. As found above, the applicant has satisfied the Australian study requirement, having undertaken her relevant studies in Bundoora, postcode 3083, while living in Moorabbin, postcode 3189. The relevant instrument at the time of application was IMMI 12/015 which does not specify either of these postcodes.

53. Therefore Tribunal finds that the applicant is not entitled to points for this Part (item 6D101).

    Part 6D.11 – Partner Skill Qualifications

54. Five 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. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

55. The applicant made no claims under this Part. (item 6D111)

56. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.12 – State or Territory nomination qualifications

57. 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 area sponsorship qualifications

58. Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 489 visa.

59. Documents on the Department’s file demonstrate that she was nominated by the NSW government. There is no evidence before the Tribunal that the nominating State government has withdrawn the application.

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

    Conclusion on points

61. 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   0 points

    6D.3 - Overseas employment experience   0 points

    6D.4 - Australian employment experience  10 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 regional / low-population area   0 points

    6D.11 - Partner skill   0 points

    6D.12 - State or Territory nomination   0 points

    6D.13 - Designated area sponsorship   10 points

    Total points   65  points

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

2. At the time of the delegate’s and the Tribunal’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?

3. 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 65 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

   CONCLUSION

4. 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.489.224, 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

5. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 489 visa:

   ·cl.489.224 of Schedule 2 to the Regulations.

   Mary-Ann Cooper
   Member