Flores (Migration)

Flores (Migration) [2021] AATA 4115 (4 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Zandra May Flores
Mr Edmond Nino Fernandez
CASE NUMBER:  1824191
HOME AFFAIRS REFERENCE(S):          BCC2018/1527259
MEMBER:Catherine Carney-Orsborn
DATE:4 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 04 August 2021 at 11:23am
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurse (Critical Care and Emergency) – ‘points test’ criterion – overseas employment experience qualifications – worked as a Registered Nurse in Philippines for over three years – evidence of remuneration – Australian employment qualifications – duties performed as a Lifestyle Carer – Australian study qualifications – result of at least 2 academic years of study – score stated in the invitation to apply for the visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350
Migration Regulations 1994 (Cth), r 2.26AC; Schedule 2, cl 189.224
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to refuse to grant the applicants 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.
The first named applicant (the applicant) was invited to apply for the visa on 7 March 2018 and applied for the visa on 4 April 2018. 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 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224.
The applicants appeared before the Tribunal on 20 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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).
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 18/067. In the present case, the applicant nominated the occupation of Registered Nurse (Critical Care and Emergency) ANZSCO 254415.
The applicant gave oral evidence to the Tribunal. She gave detailed evidence about her employment in the Philippines.
She described the work she undertook there and the private hospital she worked at.
She worked there as a critical care emergency nurse. The applicant provided a evidence to the Tribunal which was not provided to the Department. The Tribunal has considered all that evidence.
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
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.
At the time of invitation, the applicant was aged 28. Therefore, the applicant is entitled to 30 points under this part.
Part 6D.2 – English language qualifications
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.
At the time of invitation, the applicant had evidence of Proficient English as defined in reg 1.15D.
Therefore, the applicant is entitled to 10 points under this part.
Part 6D.3 – Overseas employment experience qualifications
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.
At the time of invitation, the applicant claimed she had worked as a Registered Nurse in Philippines for over three years. The Delegate assessed the applicant as not having met this criterion because there was no evidence that the overseas employment was remunerated.
The applicant submitted to the Tribunal evidence of having worked as a Registered Nurse for a hospital by way of a letter issued by the applicant’s employer. The letter stated the applicant had worked for three years and five months at the medical institution in the Emergency Department and in Medical-Surgical Wards.
The applicant submitted to the Tribunal copies of payslips issued by the same hospital supporting six months of remunerated employment. The applicant gave detailed evidence at hearing of her duties and the work she undertook in the Philippines. She provided a letter from the Accounting Department Head of the General Hospital she worked at which was co-signed by the nursing service director. The letter stated that she worked from April 2011 to September 2014 as a registered nurse. She was rotated in the emergency Department and in Medical-Surgical Wards.
The Tribunal has considered this evidence along with the previous evidence and her detailed oral evidence, and is satisfied that she worked in the nominated skilled occupation Critical Care and Emergency registered nurse.
The Tribunal on the evidence before it is satisfied that at the time of invitation, the applicant had been employed outside Australia in the nominated skilled occupation for a period totaling at least 36 months and less than 60 months in the relevant period. The evidence from the Hospital is that she was employed full-time and received a monthly salary. The payslips provided corroborate the evidence provided from the Hospital.
Under item 6D31 an applicant may claim points if the applicant had been employed outside Australia in:
(a) the applicant's nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 36 months and less than 60 months in the relevant period (5 points).
Therefore, subject to consideration of Part 6D.3, the applicant is entitled to 5 points under this part.
Part 6D.4 – Australian employment qualifications
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.
At the time of invitation, the applicant claimed points under this Part because she had commenced work as a Registered Nurse on 8 December 2017 for a Nursing Agency; however, the applicant had only worked for four months in the nominated occupation of Registered Nurse (Critical Care and Emergency). The Delegate assessed the applicant as not having worked for at least 12 months as a Registered Nurse for the Nursing Agency at the time of invitation. The applicant made no further submissions in respect of this employment to the Tribunal.
At the time of invitation, the applicant also claimed points under this Part as having worked for at least 12 months as a Lifestyle carer. The Delegate assessed the applicant as not having met this criterion with this occupation and employer because the applicant had performed duties unrelated to the nominated occupation and that the duties of a Lifestyle carer were not closely related to those of a Registered Nurse (Critical Care and Emergency).
The applicant made submissions to the Tribunal that the duties performed as a Lifestyle Attendant/Community Support Worker were closely related to the duties of a Registered Nurse (Critical Care and Emergency).
The applicant provided the Department with copy of the skills assessment outcome for the nominated occupation by the relevant assessing authority as being suitable. The relevant assessing authority deemed the applicant’s work experience of 3.5 years in Philippines to be closely related to the nominate occupation and not have been remunerated employment. The assessment by the relevant assessing authority states a validity until 15 February 2020.
The Tribunal has carefully considered all the evidence provided. The applicant provided a comparison between her nominated occupation and her work as a lifestyle carer.
The applicant gave evidence that she worked closely with the registered nurses and performed many duties as an assistant.
Under Policy, closely related occupations are those that fall within one-unit group as classified under ANZSCO. For example, if an applicant’s nominated occupation is Accountant (General), employment as a Management Accountant or Taxation Accountant may be regarded as closely related to that occupation. However, as the evaluation requires consideration of all the tasks involved in the applicant’s actual occupation, it should not be assumed that a particular occupation is not closely related to the nominated occupation just because it does not fall within the same unit group. Employment outside the unit group may also be regarded as ‘closely related’ to the nominated occupation where, for example, it represents career advancement, or where the occupation has evolved in the relevant period. In relation to this, Policy relating to Schedule 6D states:
… Although skilled employment experience within the 10 years immediately before the time of invitation to apply for the visa may primarily involve work in the applicant’s nominated skilled occupation, it is also policy to award points to applicants if their career has advanced or the occupation has evolved in the relevant period. In these circumstances, to be awarded points, the claimed employment will need to be in a skilled occupation that is closely related to the applicant’s nominated skilled occupation.
…Career advancement would usually take the form of promotion to a senior role or higher level that relates to a field of expertise and incorporates greater responsibility. For example, it is possible that over a 10 year period an accountant or engineer could advance in their career to a chief accountant or chief engineer, or a chief executive officer. This type of career advancement may occur outside of the four digit ANZSCO unit group but can be considered an exception to the policy requirement that closely related occupations be in the same ANZSCO unit group if it follows a well-established path for career advancement.
This Policy appears to be broadly consistent with the concept of ‘closely related’ as explained in the case law.
While parts of the former policy were not consistent with the terms of the legislation in so far as it suggested that the closely related skilled occupation was not limited to occupations on the SOL, the revised policy from 18 October 2019 makes clear that occupations must be from the relevant SOL.
The Tribunal has carefully considered all the evidence provided including ANZSCO, the applicant’s oral evidence of her tasks and skills set. The Tribunal on the evidence provided and after considering the relevant law is unable to conclude that the occupation of Lifestyle Carer is closely related to that of a Registered Nurse (Critical Care and Emergency).
Therefore, subject to consideration of Part 6D.4, the applicant is entitled to no points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
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.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 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
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.
At the time of invitation, the applicant made no claims under this Part. Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
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.
At the time of invitation, the applicant made claims and provided evidence of having completed a Bachelor degree of Science in Nursing. The Delegate awarded 15 points under this Part.
Part 6D72 awards 15 points to an applicant if the bachelor qualification by another institution is of a recognised standard.
Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
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 reg 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.
The applicant made no claims under this Part at the time of invitation. Therefore, the applicant is entitled to no points under this part.
Part 6D.8 – Australian study qualifications
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.
At the time of invitation, the applicant claimed points for having completed the following qualifications:
a.Bridging Course Nursing;
b.Diploma of Community Services;
c.Certificate III in Aged Care; and
d.Advanced Diploma in Community Sector Management
The Delegate assessed the Bridging Course Nursing as a non-Australian Qualification and therefore awarded no points for this program. The applicant made no submission in writing to the Tribunal in respect of this Australian study program.
The Delegate assessed the Diploma of Community Services and the Certificate III in Aged Care as not being equivalent to two academic years and therefore awarded no points for these qualifications. The applicant submitted in writing to the Tribunal that she had completed at least 16 months of Registered Courses through the Diploma of Community Services and the Certificate III in Aged Care because the qualifications were completed in Australia in 72 weeks.
The delegate assessed the Advanced Diploma in Community Sector Management as an Australian qualification that the applicant was completing at the time of the invitation, and therefore, awarded no points for this qualification. The applicant made no written submission in respect of this Australian study qualification.
The applicant submitted to the Tribunal that at the time of invitation she neglected to include completion of a Certificate III in Individual Support. The applicant submitted to the Tribunal evidence of completion of this Australian study qualification. The applicant completed the Certificate III in Individual Support in 3.5 months by 24 May 2016. Therefore, at the time of invitation the applicant had completed 2.5 academic years.
On the evidence before it the Tribunal finds that at the time of invitation, the applicant had completed one Australian diploma and two trade qualifications. The three Australian qualifications were the result of courses that were registered courses (as defined in reg 1.03) and they were completed in a total of at least 16 calendar months whilst the applicant was holding a visa authorising study. However, the Australian qualifications were not the result of at least 2 academic years of study.
An academic year study as defined in reg 1.03 is at least a total of 46 weeks. The applicant has not submitted evidence to the Tribunal that at the time of invitation she had completed at least 2 academic years of study or 92 weeks of study.
At hearing the applicant stated that she had made a mistake thinking one of her courses was relevant however realised it was not. The applicant stated that she had continued to study and had finished her studies. The Tribunal accepts that she has continued to study and concluded studies; however, unfortunately this was after the time of invitation not before.
After careful consideration of the evidence and information provided the Tribunal is not satisfied that the applicant had the required study period prior to the invitation.
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
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.

At the time of invitation, the applicant made no claims in respect of this Part. Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in designated regional area qualification
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 was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.
The Delegate found that at the time of invitation, the applicant had not met the Australian study requirement as defined in reg 1.15F because the applicant had completed registered courses in a total of at least 16 calendar months but not as a result of a total of at least 2 academic years.
It is undisputed that the applicant had completed at the time of invitation the study in a designated regional area, Adelaide, where the applicant lived whilst undertaking the study; however, the study does not meet the Australian study requirement, as outlined above.
Therefore, the applicant is entitled to no points under this part.
Part 6D.11 – Partner qualifications
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 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.
At the time of invitation, the applicant made no claims under this Part. The applicant has a spouse who is an applicant for the same subclass visa who is not an Australian citizen or permanent resident. The applicant’s spouse has a good command of English. The evidence provided is that her spouse is a registered nurse in the Philippines and meets the age criteria; however, at the time of invitation, the applicant’s spouse made no claims and submitted no evidence of having competent English as defined by reg 1.15D, he was under 50, had not nominated a skilled occupation, and had not been assessed as having suitable skills for the occupation by the relevant assessing authority.
Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
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
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
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  10 points
6D.3 - Overseas employment experience   5 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   0 points
6D.12 - State or Territory nomination   0 points
6D.13 - Designated regional area nomination or sponsorship qualifications           0 points
Total points  60 points
The applicant’s assessed score under the points system is therefore 60 points.
At the time of the delegate’s assessment the pass mark was 60 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?
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 70 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.
The outcome in relation to the second named applicant is dependent on the first named applicant being successful. As the first named applicant does not satisfy the criteria the second named applicant cannot satisfy the secondary criteria.
For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl 189.224. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visas.
Catherine Carney-Orsborn
Member

[2021] AATA 4115

4 August 2021

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Immigration

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