DY (Migration)

[2018] AATA 1988

DY (Migration) [2018] AATA 1988 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SETH OLIVER DY
Mrs MICHELLE DY
Ms CHLOE SAMANTHA DY
Mr JUSTIN TRISTAN DY

CASE NUMBER:  1709265

DIBP REFERENCE(S):  BCC2016/2290543

MEMBER:Catherine Carney-Orsborn

DATE:22 May 2018

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.189.214 of Schedule 2 to the Regulations

·The Tribunal has no jurisdiction in relation to the secondary applicants.

Statement made on 22 May 2018 at 1:43pm

CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 – Skilled – Independent – Points test criterion – Point score in invitation – PTE Academic – Work hours – Pay slips – Qualifying point score – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, rr 1.15I, 2.26AC, Schedule 2 cl 189.214

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 Immigration on 10 April 2017 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visas under s.65 of the Migration Act 1958 (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 6 July 2016 and applied for the visa on 7 July 2016. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

3. The first named applicant (the applicant) appeared before the Tribunal on 4 April 2018 to give evidence and present arguments.

4. The Tribunal does not have jurisdiction in relation to the second, third and fourth applicants as information before the Tribunal indicates they were offshore at the time of the primary decision and the lodgement of the review with the Tribunal.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the first named applicant’s application for a skilled visa should be remitted for reconsideration.  The Tribunal has no jurisdiction in relation to the second, third fourth named applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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’.

8. 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).

9. 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 IMMI16/059.  In the present case, the applicant nominated the occupation of Registered Nurse.

10. The applicant provided detailed submissions to the Tribunal.  The Tribunal took evidence from the applicant.  The Tribunal has the Department’s file and access to the Department’s databases.  At hearing the applicant said he understood that the Tribunal does not have jurisdiction in relation to his wife and two children (the secondary applicants). 

11. He stated that in relation to his work employment he has been employed in several large hospitals in NSW.  He has done shift work.  He claims that his shifts have overlapped and that some of the hours in the timesheets were worked in the previous or later week.

12. He went through the work he undertook.  At hearing he supplied copies of his timesheets and pay records from several large public hospitals as well as a nursing agency.

13. He explained that he was on a student visa and then a bridging visa and was unable to work more than the 20 hours.  He says that he did work for 12 months in the period before the invitation to apply.  He worked for those hospitals from March 2015 to July 2016.  The work was constant however he was a shift worker.

14. In relation to the English requirement the applicant provided evidence from PTE academic.  That evidence indicated that the results were sent to the Department prior to his date of invitation.  The information from PTE academic shows that He achieved 90 for listening, 90 for reading, 84 for speaking and 85 for writing. 

15. PTE provided evidence that the results had been sent to the Department on 22 June 2016

16. PTE provided a copy from their information and website that confirmed the above.

    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

17. 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.

18. At the time of invitation the applicant was aged 40 years. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.2 – English language qualifications

19. 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. The applicant provided evidence to the Tribunal that he had the required English language proficiency as set out above.

21. The Tribunal had the applicant’s evidence independently checked and verified by the institution PTE.  On this evidence the Tribunal is satisfied that it was sent prior to the date of invitation and unfortunately was not before the Department when they made their decision.

22. On the information and scores before the Tribunal the Tribunal is satisfied that the applicant has superior English as defined in r.1.15EA and is therefore entitled to 20 points. 

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

    Part 6D.3 – Overseas employment experience qualifications

24. 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.

25. In the visa application held on the Department file the applicant stated he was employed as a registered nurse at General Santos City Hospital from 1 November 2010 to 31 August 2013.  Southern Philippines Medical Centre from 16 February 2010 to 30 June 2010 and Brokenshire Integrated Health Ministries from 1 September 2009 to 30 November 2009. This is a period of at least 36 months in the 10 years before the invitation for the visa.

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

    Part 6D.4 – Australian employment qualifications

27. 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.

28. The applicant claims that from March 2015 until July 2016 he was employed as a registered nurse.  The applicant provided copies of payslips and a graph.  The Tribunal also has his qualification documents and registration certification.

29. The Tribunal accepts he was employed in that period as a registered nurse.

30. The issue is whether he was employed for at least 20 hours a week.  The payslips when aggregated indicate that he was employed for 12 months in the relevant period.

31. The payslips provided by the applicant indicate that the applicant worked for Westmead Private Hospital, Concord Hospital, RNS, and Royal Prince Alfred.  He further provided evidence of working with a nursing agency.

32. The applicant provided a detailed breakdown of his hours.  He claims that often he worked more hours in any pay period and that there was an adjustment to the next payslip.  The Tribunal has before it payslips which refer to adjusted hours and hours worked. 

33. The Tribunal notes that some payslips refer to over 80 hours worked and the others 10 hours.  The Tribunal accepts that as the applicant was a shift worker who was employed on a casual basis that his hours mean that the payslips had at times overlapped and had to be adjusted.

34. The Tribunal has carefully considered the evidence provided.  The applicant’s evidence has been corroborated by the documentary evidence provided including payslips and letters from employers.

35. The Tribunal is satisfied on the extensive evidence provided that the applicant had been employed in Australia in the nominated skilled occupation for a period of 12 months in the relevant period.

36. 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

37. 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.

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

39. 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.

40. The applicant provided no evidence in relation to Part 6D.6 to show she is entitled to any points relevant to Part 6D.6.  There is nothing before the Tribunal to indicate that the applicant was entitled to any points under this part 6D.6 at the time of invitation.

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

    Part 6D.7 – Educational qualifications

42. 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.

43. On the Department file is evidence that the applicant completed a Bachelor in Nursing from Curtin University in December 2014. 

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

    Part 6D.7A – Specialist educational qualifications

45. 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.

46. There is no evidence before the Tribunal which would indicate that the applicant met the criteria for specialist educational qualifications at the time of invitation.

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

    Part 6D.8 – Australian study qualifications

48. 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.

49. There is no evidence before the Tribunal which would indicate that the applicant met the criteria for Australian study qualifications at the time of invitation.

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

    Part 6D.9 – Credentialled community language qualifications

51. 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.

52. There no evidence before the Tribunal that the applicant meets this criteria.

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

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

54. 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.

55. There no evidence before the Tribunal that the applicant meets this criteria.

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

    Part 6D.11 – Partner Skill Qualifications

57. 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.

58. There no evidence before the Tribunal that the applicant meets this criteria.

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

    Part 6D.12 – State or Territory nomination qualifications

60. 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

61. 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

62. 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  15 points

    6D.2 - English language  20 points

    6D.3 - Overseas employment experience    5 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 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   0 points

    Total points   60 points

63. The applicant’s assessed score under the points system is therefore 60 points.

64. At the time of the delegate’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?

65. 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 60 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.

66. For the reasons outlined above the Tribunal has no jurisdiction in relation to the secondary applicants.

67. For the above reasons, the applicant is entitled to a maximum of 60 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.189.214, 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

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

    ·cl.189.214 of Schedule 2 to the Regulations.

69. The Tribunal has no jurisdiction in relation to the secondary applicants.

    Catherine Carney-Orsborn
    Member