Cortez (Migration)

[2023] AATA 1818

Cortez (Migration) [2023] AATA 1818 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sarah Mae Cortez

REPRESENTATIVE:  Mr Renante Sulit (MARN: 1382407)

CASE NUMBER:  2010639

HOME AFFAIRS REFERENCE(S):          BCC2020/1614592

MEMBER:Namoi Dougall

DATE:28 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 28 March 2023 at 1:15pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled – Nominated) – points-based visa – occupation of Registered Nurse (Surgical) – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, Schedule 2, cl 190.214; Schedule 6D; rr 1.15, 2.26

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 25 June 2020 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 12 May 2020 and applied for the visa on 25 May 2020. 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 was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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’.

2. 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).

3. 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 IMMI 19/051. In the present case, the applicant nominated the occupation of Registered Nurse (Surgical)

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

1. 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.

2. 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

1. 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.

2. Provided to the Tribunal was a copy of the applicant’s PTE test results issued on 15 January 2019. The overall score was 86. Therefore, the Tribune is satisfied that the applicant has superior language English skills.

3. Therefore, the applicant is entitled to 20 points under this part.

Part 6D.3 – Overseas employment experience qualifications

1. 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.

2. Provided to the Tribunal was a certification of employment from General Santos Doctor’s Hospital Inc, Santos City Philippines stating that the applicant worked 40 hours a week as a staff nurse from 1 June 2015 to 16 December 2016. The letter also indicated that the applicant was a Registered Nurse. A period of 18 months and 3 weeks. No further evidence was provided of additional work by the applicant in the Philippines. Thereof, the Tribunal is not satisfied that the applicant has had employment for a period of at least 36 months in the relevant period.

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

Part 6D.4 – Australian employment qualifications

1. 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.

2. Provided to the Tribunal was a work reference for the applicant from Network Nursing Agency dated 11 January 2023 which stated that the applicant has worked as a Registered Nurse on a Casual basis from 31 July 2017 to 20 January 2022.the applicant worked in the public sector vis direct allocations with NSW Health. The applicant’s duties were stated to be as follows:

• Administer COVID-19 swab tests to assist with the detection and management of the coronavirus pandemic

• Maintain confidentiality of information pertaining to patients, physicians, employees, and visitors at all times.

• Identify problems & initiate appropriate follow up.

• Implement evidence-based assessment skills, protocols and interventions.

• Demonstrate critical thinking skills and manage priorities.

• Maintaining patient hygiene needs including performing bed bathing, oral care and wound dressings.

• Demonstrate a high sense of responsibility for the performance of job duties in the safest possible manner, to assure personal safety and that of coworkers, patients and the general public.

• Maintaining and enhancing the competencies of the clinical skills through mandatory Continuous Professional Education.

1. Provided to the Tribunal was the applicant’s resume which included her duties while working as an agency nurse at Royal Prince Alfred Hospital (RPAH) from 31 July 2017 to 4 August 2020 as follows:

   ·     assessing and planning nursing care requirements

   ·     providing care before and after operations

   ·     monitoring and administering medication, injections and intravenous infusions

   ·     treating wounds

   ·     taking samples from patients and monitoring their pulse, temperature and blood pressure

   ·     on the condition of patients

   ·     dealing with emergencies

   ·     obtaining parental consent for treatment

   ·     writing records

   ·     providing information, emotional support and reassurance to patients and relatives

   ·     Record medical history and symptoms

   ·     Collaborate with team to plan for patient care

   ·     Advocate for health and wellbeing of patient

   ·     Monitor patient health and record signs

   ·     Operate medical equipment (BGL machines, bladder scanners, pulse oximeters and etc.)

   ·     Perform diagnostic tests within the scope of my practice.

   ·     Educate patients about management of illnesses

   ·     Provide support and advice to patients

   ·     Monitoring the patient and addressing any signs of distress, infection, shock, bleeding, or other problems

   ·     Assisting patients by helping them deal with the effects of the surgical procedure or by providing pain management

   ·     Instructing the patient and patient’s family on at-home, post-operative care (discharge orders)

   ·     Ensuring that the patient is comfortable

   ·     Administering prescribed drugs within the scope of practice

   ·     Adhering to the Rights of Medication Administration in accordance to patient’s rights and safety.

   ·     Demonstrating WHS protocols and observing infection control practices.

   ·     Able to adapt well when shifted to different wards on a frequent basis

2. The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Registered Nurse (Surgical). The tasks listed in ANZSCO for the Unit Group 2544 Registered Nurses are as follows:

   ·     assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards

   ·     working in consultation with other Health Professionals and members of health teams, and coordinating the care of patients

   ·     providing interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan

   ·     promoting health and assisting in preventing ill health by participating in health education and other health promotion activities

   ·     answering questions and providing information to patients and families about treatment and care

   ·     supervising and coordinating the work of Enrolled Nurses and other health care workers

3. ANZSCO states in relation to Registered Nurses (Surgical) that they provide: ‘nursing care to patients with injuries and illness that require surgical intervention’.

4. On the evidence the Tribunal is satisfied that the applicant has worked as a Registered Nurse (Surgical) during her work at RPAH.

5. Reg 2.26AC(6) defines the work ‘employed to mean engaged in an occupation for remuneration for at least 20 hours per week. Provided to the Tribunal were payslips for the applicant for her work as a Registered Nurse. The payslips are from 7 August 2017 to after the invitation date of 12 May 2020 and the number of weeks the applicant worked 20 hours or more from 7 August 2017 to 12 May 2020 was 84 weeks or 21 months.

6. On the above the Tribunal is satisfied that the applicant had been employed in Australia in the nominated skilled occupation or a closely related occupation, for a period totalling at least 12 months and less than 36 months in the relevant period.

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

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

1. 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.

2. 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

1. 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.

2. The applicant has not made any claim or provided any evidence that she has completed a professional year. Therefore, the applicant is entitled to no points under this part.

Part 6D.7 – Educational qualifications

1. 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.

2. Provided to the Tribunal was a Diploma of Leadership and Management from the Australian Academy of Commerce dated 14 December 2023.  The Provider Registration and International Student Management System indicates that the course was started on 9 March 2020 and completed on 6 March 2022. Therefore, the Tribunal is not satisfied that the applicant at the time of the invitation has met the requirements for the award of the Diploma.

3. Provided to the Tribunal was a Bachelor of Science in Nursing award on 29 March 2014 from the St Alexius College, Koronadal, Philippines. Also provided to the Tribunal was a skills assessment from the Australian Nursing & Midwifery Accreditation Council which assessed the applicant’s skills as being suitable for migration for the nominated occupation of Registered Nurse (Surgical) (ANZSCO 254424). The sills assessment was valid for 2 years from 23 November 2018. This degree was recognised in the applicant’s Bachelor Degree in Science in Nursing as part of her education to gain registration.

4. On the above the Tribunal is satisfied that the Bachelor of Science in Nursing award on 29 March 2014 from the St Alexius College, Koronadal, Philippines is an award of at least a bachelor qualification by another institution that is of a recognised standard.

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

Part 6D.7A – Specialist educational qualifications

1. 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.

2. The applicant has not made any claim or provided any evidence that she has completed a specialist educational qualification. Therefore, the applicant is entitled to no points under this part.

Part 6D.8 – Australian study qualifications

1. 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.

2. As referred to above, the applicant has provided a Diploma of Leadership and Management from the Australian Academy of Commerce which at the time of the invitation the applicant had not met the requirements for the award of the Diploma. Therefore, the Tribunal is satisfied that has not met the Australian study requirements.

3. 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

1. 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.

2. The applicant has made no claims and provided no evidence that she was a holder of a language qualification awarded or accredited by a body specified by the Minister at the time of the invention to apply for a visa. Therefore, the applicant is entitled to no points under this part.

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

1. 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.

2. As referred to above, the Tribunal has found that the applicant has not met the Australian study requirement. Therefore, the applicant is entitled to no points under this part.

Part 6D.11 – Partner qualifications

1. 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.

2. Provided to the Tribunal was a statutory declaration of the applicant dated 20 March 2023 stating that she is single and has never married. The Tribunal is satisfied that the applicant is not married or in a de facto relationship.

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

Part 6D.12 – State or Territory nomination qualifications

1. 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. There is no information or evidence on the files that the nominating State or Territory government agency has withdrawn the nomination.

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

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

1. 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

1. 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  20 points

   6D.3 - Overseas employment experience  0 points

   6D.4 - Australian employment experience  5 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  5 points

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

   0 points

   Total points  85 points

1. The applicant’s assessed score under the points system is therefore 85 points.

2. At the time of the Tribunal’s decision the pass mark was also 65 points: Legislative Instrument LIN 19/210.

Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

1. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 18/067. 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?

1. 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 85 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.

2. For the above reasons, the applicant is entitled to a maximum of 85 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 190.214, 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

1. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

   ·cl 190.214 of Schedule 2 to the Regulations.

Namoi Dougall
Member