Cui (Migration)

[2023] AATA 1530

Cui (Migration) [2023] AATA 1530 (14 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yating Cui
Mr Dapeng Gao
Mr Yinchen Gao

REPRESENTATIVE:  Mr Bo Li (MARN: 0853061)

CASE NUMBER:  2012532

HOME AFFAIRS REFERENCE(S):          BCC2020/1439546

MEMBER:Mary Sheargold

DATE:14 April 2023

PLACE OF DECISION:  Melbourne

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

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 14 April 2023 at 12:40pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ‘points test’ criterion – Registered Nurse (Surgical) – Australian study qualifications – Bachelor of Science (Nursing) – failing a subject – Department’s policy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15F; 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 16 July 2020 to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas 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 first named applicant (the applicant) was invited to apply for the visa on 24 April 2020 and applied for the visa on 27 April 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 applicants were represented in relation to the review.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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’.

7. 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).

8. 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 Registered Nurse (Surgical), ANZSCO 254424.

   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

9. 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.

10. At the time of invitation the applicant was aged 33 years. Therefore, the applicant is entitled to 25 points under this part.

    Part 6D.2 – English language qualifications

11. 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.  20 points are available for applicants who can demonstrate that they have superior English as defined in reg 1.15EA.  The relevant instrument referred to in r.1.15EA states that persons with a PTE Academic score of at least 65 in each test category, Reading, Writing, Speaking and Listening, is considered to have superior English.  The applicant provided the Department with her PTE Academic test scores from 22 November 2018 showing scores between 80 and 90 in each category.  Therefore, the Tribunal is satisfied that she has demonstrated that she has superior English, and she 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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.

13. The applicant provided the Department with evidence that she worked as a Registered Nurse at Peking University First Hospital from 1 August 2011 to 28 February 2017, a period totalling 66 months.  Therefore, the Tribunal is satisfied that she is entitled to 10 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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

15. The applicant made no claims under this Part, and there is no evidence to demonstrate that, at the time of invitation, she had been employed in her nominated occupation or a closely related skilled occupation for at least 12 months in the 10 years immediately before the invitation date.  Therefore, she is entitled to no points under this Part.

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

16. 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.

17. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10 points.  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

18. 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.

19. The applicant made no claims and provided no evidence that she had completed a professional year program as defined in the relevant instrument.  She is not a graduate of information technology, accounting or engineering.  Therefore, she is entitled to no points under this Part.

    Part 6D.7 – Educational qualifications

20. 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.

21. The applicant provided evidence that she holds 2 Bachelor level degrees, and a Master of Medicine degree.  One Bachelor degree was obtained from Curtin University in Western Australia, and the other 2 degrees from universities in Beijing. 

22. These are all degrees of at least a Bachelor degree level awarded by an Australian educational institution or by an institution of a recognised standard, and so the applicant is entitled to 15 points under this Part.

    Part 6D.7A – Specialist educational qualifications

23. 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.

24. The applicant made no claims nor provided evidence that she held a specialist educational qualification described in Part 6D.7A before the time of invitation to apply for the visa, and so she is not entitled to any points under this Part.

    Part 6D.8 – Australian study qualifications

25. 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.

26. The applicant holds a Bachelor of Science (Nursing) degree from Curtin University, awarded as the result of study completed between 30 July 2018 and 3 December 2019, plus a large amount of credit for recognised prior learning given the applicant’s qualifications and work experience in China.

27. The delegate refused to award points under this Part on the basis that she did not complete 16 calendar months of study in Australia because her studies were protracted due to failing a subject in the first semester of 2019 leading to her being enrolled at a 50% load in her final semester in 2019.  The delegate relied on Departmental policy suggesting that to determine whether an applicant had undertaken a course of at least 2 academic years in duration, subjects failed and weeks added for repeating such subjects did not contribute to the calculation of 2 academic years of study.

28. The applicants’ representative submitted that the delegate had conflated the Department’s policy regarding the calculation of 2 academic years with the calculation of at least 16 calendar months of study.  Having considered the Department’s policy and the wording of the Regulations, the Tribunal accepts the representative’s submission.

29. The Tribunal has applied the following tests to determine whether the applicant meets the Australian study requirement for the awarding of points under this Part.

30. First, the Tribunal is satisfied that the applicant completed a Bachelor of Science (Nursing) at Curtin University on 3 December 2019.  Curtin University of Technology is registered on CRICOS, with provider code 00301J.  The Bachelor of Science (Nursing) is a course registered with CRICOS with a duration of 182 weeks.  Therefore, the requirement in r.1.15F(a) is met.

31. The applicant studied from 30 July 2018 to 3 December 2019, a period totalling at least 16 calendar months, so the requirement in r.1.15F(b) is met.

32. The applicant’s course was completed as a result of at least 2 academic years of study, where an academic year is set at 46 weeks under the relevant instrument.  With a duration of 182 weeks, the course completed by the applicant amply satisfies the 92 week minimum and so the requirement in r.1.15F(c) is met.

33. The completion letter provided by the applicant shows that all instruction for the course was in English, so r.1.15F(d) is met, and she held a student visa while she completed her studies, so r.1.15F(e) is met.

34. 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

35. 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.

36. The applicant provided evidence to the Department with her application demonstrating that she met the requirements under this Part, and so 5 points are awarded.

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

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), 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.

38. The Tribunal has found the applicant met the Australian study requirement.  Designated regional areas for the purpose of this Part are set out in LIN 19/217, where any postcode set out in Column 3 of the table in section 6 of that instrument is said to be a designated regional area.  The applicant lived in South Perth, postcode 6151, and studied at Curtin University in Perth at postcode 6102.  Both of these postcodes are encompassed in the list of postcodes from 6090 to 6182 appearing in Column 3 of the table in section 6.

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

    Part 6D.11 – Partner qualifications

40. 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.

41. The applicant made no claims under this part and no evidence has been provided to demonstrate that the requirements in this part are met.

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

    Part 6D.12 – State or Territory nomination qualifications

43. 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, nominated by the State of Victoria.  There is no evidence to indicate that the State of Victoria has withdrawn its nomination.

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

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

45. 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

46. 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  10 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  5 points

    6D.9 - Credentialled community language  5 points

    6D.10 - Study in designated regional area qualification        5 points

    6D.11 - Partner qualifications  0 points

    6D.12 - State or Territory nomination  5 points

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

    Total points  90 points

47. The applicant’s assessed score under the points system is therefore 90 points.

48. 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?

49. 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 90 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.

50. For the above reasons, the applicant is entitled to a maximum of 90 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, including in relation to the secondary applicants.

    DECISION

51. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

    ·cl 190.214 of Schedule 2 to the Regulations.

    Mary Sheargold
    Member