Fry (Migration)

Fry (Migration) [2018] AATA 5828 (12 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lenice Constance Fry
CASE NUMBER:  1716565
HOME AFFAIRS REFERENCE(S):           BCC2017/460096
MEMBER:K. Chapman
DATE:12 December 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 12 December 2018 at 7:27pm
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled - Independent) – Secondary School Teacher – skills suitable for nominated occupation – skills assessment not completed in required timeframe – withdrew Partner visa application due to family violence – unfair and unreasonable result – asset to community – ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 345, 350, 351, 359, 391, 417, 454, 501J
Migration Regulations 1994, rr 1.03, 1.15, 2.26, Schedule 2, cls 189.212, 189.214, Schedule 6D
Education Services for Overseas Students Act 2000
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 Immigration and Border Protection on 20 July 2017 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (‘the Act’). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The applicant, Ms Lenice Fry, was invited to apply for the visa on 21 December 2016. She applied for the visa on 4 February 2017 nominating the skilled occupation of Secondary School Teacher (ANZSCO Code 241411). The applicant is a national of the United Kingdom.
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.
On 14 September 2018, the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting her to comment on or respond to information contained in the Departmental file indicating her skills assessment from the Australian Institute for Teaching and School Leadership (AITSL), for the nominated occupation of Secondary School Teacher, is dated 23 February 2017 which tends to suggest that at the time of invitation to apply for the visa the relevant assessing authority had not assessed her skills as suitable for her nominated skilled occupation.
The Tribunal’s correspondence of 14 September 2018 also invited the applicant, pursuant to subsection 359(2) of the Act, to provide information concerning whether she achieves a score of at least 60 points according to Schedule 6D to the Migration Regulations. In response to the invitation, the Tribunal received written submissions, numerous supporting statements, a petition and a Skills Assessment Certificate from AITSL. The aforementioned material has been duly considered by the Tribunal.
The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. She submitted several statements in support and written submissions at the review hearing. The aforementioned material supported her contention that she suffered family violence in a previous relationship with an Australian citizen that caused her to delay obtaining a Skills Assessment with respect to the Subclass 189 visa application. The aforementioned material has been duly considered by the Tribunal.
The Tribunal had the benefit of observing the applicant provide her oral evidence in person and finds that she is a most genuine and truthful individual. For the following reasons however, the Tribunal has concluded that the decision under review should be affirmed. Additionally though, the Tribunal notes that it respectfully recommends the Minister exercises the powers pursuant to s.351 of the Act with regard to the applicant for reasons expressed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
One issue in the present case is whether, at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for her nominated skilled occupation. Another issue is whether the applicant satisfies the points test criterion when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
Suitable Skills Assessment
Clause 189.212(1) requires that at the time of invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. For visa applications where the invitation to apply was given on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, there are additional requirements relating to the currency of the assessment as at the time of invitation to apply for the visa.
‘Relevant assessing authority’ means a person or body specified by the Minister in an instrument under r.2.26B of the Regulations (r.1.03). ‘Skilled occupation’ has the meaning given by r.1.15I of the Regulations (r.1.03). An occupation is a skilled occupation if: it is specified by the Minister in an instrument in writing 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. The relevant instrument for these purposes is Legislative Instrument IMMI 16/059, which provides that the Australian Institute for Teaching and School Leadership (AITSL) is the relevant assessing authority for the applicant’s nominated skilled occupation of Secondary School Teacher (ANZSCO Code 241411).
If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course: cl.189.212(2). ‘Registered course’ is defined to mean a course of education or training provided by an institution, body or person that is registered, under the Education Services for Overseas Students Act 2000, to provide the course to overseas students (r.1.03).
The applicant submitted a suitable skills assessment from AITSL in respect of her nominated occupation dated 23 February 2017. That skills assessment was based upon her tertiary qualifications obtained in the United Kingdom and her experience in secondary school teaching gained in both her home country and in Australia. In her oral evidence the applicant conceded, quite properly, that the relevant assessing authority had not assessed her skills as suitable for her nominated skilled occupation at the time of the invitation to apply for the visa. She accepted that her suitable skills assessment post-dated the time of invitation, however she attributed the aforementioned timing to a being subject to family violence in a previous de facto relationship with an Australian citizen which saw her withdraw a Partner visa application and also to the delay caused by the Christmas period when she applied for the skills assessment.
The Tribunal accepts that AITSL has assessed the applicant’s skills as suitable for her nominated skilled occupation. However, that assessment was not made at the time of invitation to apply for the visa. Accordingly, by operation of law, the applicant does not satisfy the requirements of cl.189.212(1).
The Points Test Criterion
The Tribunal must also examine 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 (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).
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 16/059. In the present case, the applicant nominated the occupation of Secondary School Teacher (ANZSCO Code 241411).
The Tribunal discussed each Part of Schedule 6D with the applicant at the review hearing. The following findings are based on a careful assessment of the relevant oral and documentary evidence before the Tribunal.
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 years. 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.
The applicant holds a British Passport and, in the absence of further evidence at the time of invitation to apply for the visa, was deemed by the Departmental delegate to possess ‘competent’ English proficiency. This attracts no points.
The applicant submitted an IELTS result dated 18 January 2017 which demonstrates an overall band score of 8.5. The Tribunal notes that this result demonstrates a ‘superior’ level of English language proficiency. In her oral evidence the applicant conceded, quite properly, that she did not possess an IELTS (or other English language testing) result at the time of the invitation to apply for the visa. The applicant accepted that she is accordingly entitled to no points for her level of English language proficiency.
Following careful consideration, the Tribunal finds that the applicant is entitled to no points under this Part given that at the time of the invitation to apply for the visa she had not obtained an English language test result. For completeness, the Tribunal notes that had her IELTS result of 8.5 been obtained one month earlier, she would have been entitled to 20 points for superior English 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 at least 36, 60, or 96 months in the 10 years immediately before that time.
It is not in dispute that the applicant provided evidence of relevant overseas employment experience in the teaching sector for a period of at least 36 months in the relevant 10 year period and accordingly, subject to consideration of Part 6D.5, she 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
It is not in dispute that the applicant provided evidence of employment in the Australian teaching sector for a period of at least 12 months in the relevant 10 year period. 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
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.
This Part does not apply to the applicant in her circumstances.
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 at least 12 months in the immediately preceding 48 months.
There is no evidence before the Tribunal that the applicant completed a professional year, that is, a course specified in an instrument. 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 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.
It is not in dispute that the applicant provided evidence that she held overseas teaching qualifications at the Bachelor Degree level at the time of invitation to apply for the visa. Therefore, the applicant is entitled to 15 points under this Part.
Part 6D.7A – Specialist educational qualifications
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 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.
There is no evidence before the Tribunal that the applicant completed specialist educational qualifications as specified in an instrument. 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 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.
There is no evidence before the Tribunal that the applicant met the Australian study requirement. Therefore, 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.
There is no evidence before the Tribunal that the applicant possesses credentialled community language qualifications. 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
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.
There is no evidence before the Tribunal that the applicant met the Australian study requirement. Therefore, the applicant is entitled to no points under this Part.
Part 6D.11 – Partner Skill Qualifications
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 a specified age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.
There is no evidence before the Tribunal that the applicant has a spouse or de facto partner who nominated a specified skilled occupation at the time of invitation. 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 area 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. 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  0 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  55 points
The applicant’s assessed score under the points system is therefore 55 points.
At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore not achieved the qualifying score to pass the points test.
Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

There have not been any relevant changes to the Regulations or pass mark at the time of this decision. Therefore, the applicant has not achieved the qualifying score to pass the points test for the reasons expressed above.
For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
MINISTERIAL INTERVENTION
The applicant gave oral evidence that she was previously in a de facto relationship with an Australian citizen and suffered family violence from him. She outlined that she had a Partner visa application on foot sponsored by this man, however as the relationship soured she withdrew that application and sought permanent residence through her skilled occupation as a Secondary School Teacher. Several third party statements in support of the applicant’s contentions concerning family violence were submitted to the Tribunal. The applicant advised the Tribunal that she did not want to ‘cheat’ the system by attempting to continue with her Partner visa application when the relationship came to its conclusion. It is apparent to the Tribunal that the applicant was unaware of the family violence provisions applicable to Partner visa applications.
According to the applicant, given the timing of the cessation of her relationship, she applied for the Subclass 189 visa in haste and was not able to obtain her skills assessment in a timely fashion due to the Christmas period of 2016. She also applied too late to obtain an IELTS test result which might enhance her points score. The Tribunal observed the applicant provide her oral evidence in person and found it to be compelling. The Tribunal accepts the applicant provided truthful evidence in relation to the aforementioned matters and it also accepts the veracity of the third party supporting statements.
The applicant also submitted several references from students, parents and peers in relation to her work as a Secondary School Teacher in the Queensland public education system. A petition from students was also received by the Tribunal. It is apparent to the Tribunal that the applicant has provided excellent service as an educator and is an asset to the Australian community in her nominated occupation.
The applicant requested the Tribunal to refer her case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.
The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state. Further factors include exceptional economic, scientific, cultural or other benefit which would result from the person being permitted to remain in Australia; or circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular case.
The Tribunal considers that the family violence suffered by the applicant placed her in an invidious position where her Partner visa application was no longer supported by the sponsoring partner and she was not able to secure a skills assessment and IELTS result within the necessary timeframe to satisfy the requirements of the Subclass 189 visa. This has produced the result that a fully qualified and respected Secondary School Teacher, who has superior English language skills, is by operation of law not able to be granted the Subclass 189 visa. Additionally, the Tribunal notes that due to the honesty and integrity of the applicant she was placed at a disadvantage by wishing to pursue an independent skilled pathway rather than rely upon a Partner visa application unsupported by the sponsoring partner. The Tribunal considers this situation to produce an unfair and unreasonable result, which is to the detriment of not only the applicant, but also to a significant number of Australian citizen school students whom she teaches.
The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s Guidelines on Ministerial Powers (s345, s351, s391, s417, s454 and s501J)’. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to the applicant.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.
K. Chapman
Member

[2018] AATA 5828

12 December 2018

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