Hnit (Migration)

[2021] AATA 2713

Hnit (Migration) [2021] AATA 2713 (5 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Su Su Thae Hnit

CASE NUMBER:  1915973

HOME AFFAIRS REFERENCE(S):          BCC2018/5440488

MEMBER:Warren Stooke AM

DATE:5 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.223 of Schedule 2 to the Regulations; and

·cl 485.224 of Schedule 2 to the Regulations.

Statement made on 5 July 2021 at 6:10pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – occupation of Medical Laboratory Scientist – visa extension for Myanmar nationals – partial completion of study units – extensive involvement in cancer research – relevant qualifications and contemporary work – career development opportunities – limitations of ANZSCO Codes – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 2.26; Schedule 2, cls 485.223, 485.224

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 31 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 December 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa on the basis that the applicant did not satisfy cl 485.224 of Schedule 2 to the Regulations because the applicant had not provided evidence that the applicant’s skills had been assessed by a relevant assessing authority as suitable for the nominated skilled occupation, Medical Laboratory Scientist (ANZSCO Code: 234611). As such, it was deemed that the applicant had not met the requirements of regulation 485.224(1).

4. The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments.

5. The applicant stated that she had read the delegate’s decision and understood that her application was refused based upon the need to provide an outcome of a skills assessment.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.223 and 485.224 of Schedule 2 to the Regulations. These criteria are concerned with the applicant’s skills in relation to their nominated skilled occupation. The relevant legislative provisions are as follows:

   “485.223  

   When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority.

   485.224  

   (1)  The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

   (1A)  If the assessment is expressed to be valid for a particular period, that period has not ended.

   (2)  If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.”

9. The issue in the present case is whether the applicant meets those requirements.

10. The applicant is a 34 year old from Myanmar, who undertook a Bachelor of Medical Technology at the University of Medical Technology, Mandalay, Myanmar from 1 December 2003 to 26 January 2006. The applicant has also undertaken studies at an Australian academic institution and completed the following courses:

    a.Bachelor of Medical Science (Honours) with Honours Class II Division I awarded in September 2013 from the University of Western Sydney, Australia as an Australian Bachelor Honours degree;

    b.Doctor of Philosophy awarded in December 2018 from the Western Sydney University, Australia as an Australian Doctoral degree.

11. The applicant was granted a Bridging Visa A on 4 December 2018, which requires the applicant to maintain health insurance in accordance with criteria 8501 and does not permit travel.

12. The applicant provided evidence of undertaking an IELTS English language test on 7 July 2018 with an overall achieved score of 7.5.

13. The Australian Institute of Medical Scientists (AIMS) has, in accordance with the occupational classification guidelines, assessed the applicant’s skills as not suitable for the skilled occupation of Medical Laboratory Scientist ANZSCO 234611 or Medical Laboratory Technician ANZSCO 311213, which was confirmed in correspondence of 4 May 2020.

14. Further, the assessing authority provided the following advice concerning the assessment of the applicant’s qualifications and work experience:

    “The claim of 1 year and 4 months of equivalent full-time overlapping work experience cannot be found to equate to work at an appropriately skilled level:

    • From 7 January 2019 to 6 January 2020, Dr Hnit was employed as a Post-Doctoral for The University of Sydney, Sydney, Australia for 1 year, equivalent full-time overlapping;
    • From August 2019 to October 2019, Dr Hnit was employed as a Practical Supervisor and Demonstrator for Western Sydney University, Sydney, Australia for 12 hours per week overlapping;
    • From December 2018 to January 2019, Dr Hnit was employed as a Practical Supervisor and Demonstrator for Western Sydney University, Sydney, Australia for 3 hours per week;
    • From August 2018 to October 2018, Dr Hnit was employed as a Practical Supervisor and Demonstrator for Western Sydney University, Sydney, Australia for 2 months equivalent full-time;
    • From July 2016 to November 2016 (Spring Semester), Dr Hnit was employed as a Practical Class Demonstrator for Western Sydney University, Sydney, Australia for 3 hours per week;
    • From July 2015 to November 2015 (Spring Semester), Dr Hnit was employed as a Practical Class Demonstrator for Western Sydney University, Sydney, Australia for 6 hours per week;
    • From August 2014 to October 2014, Dr Hnit was employed as a Practical Supervisor and Demonstrator for Western Sydney University, Sydney, Australia for 3 hours per week;
    • From 24 June 2013 to 24 October 2013, Dr Hnit was employed as a Research Assistant for the Western Sydney University, Sydney, Australia for 2 months equivalent full-time.

    This opinion is based on the following items of evidence and does not constitute an opinion as to the veracity of the claims made:
    • Employment reference and verification by Associate Professor Qihan Dong, Faculty of Medicine and Health, The University of Sydney, Sydney, Australia;
    • Employment reference and verification by Dr Gabriel Perrone, Senior Lecturer in Human Genetics, School of Science and Health, Western Sydney University, Sydney, Australia;
    • Employment reference and verification by Sabine Piller, Western Sydney University, Sydney, Australia.

    The Australian Institute of Medical Scientists (AIMS) has, in accordance with Department of Home Affairs Specialist Education Qualification guidelines, assessed you as holding a Specialist Education Qualification.
    For the purposes of awarding points for Specialist Education Qualifications under the General Skilled Migration points test, the Australian Institute of Medical Scientists has recognised the qualification submitted:
    • Doctor of Philosophy awarded in December 2018 from the Western Sydney University, Australia as an Australian Doctoral degree with a Field of Education code of 061905 Traditional Chinese Medicine.

    The assessment has been made based on the following items of evidence:
    • Copy of the qualification Doctor of Philosophy awarded in December 2018 from the Western Sydney University, Australia;
    • Copy of the abstract of the thesis for the Doctor of Philosophy titled “A combination of Chinese herb Hedyotis diffusa and Scutellaria barbata impairs mitotic entry of prostate cancer cells without eliciting DNA damage”.

    This advice is the opinion of the Australian Institute of Medical Scientists and does not guarantee the awarding of any points under the skilled migration points test. Determination of points under the skilled migration points test remains at the discretion of delegated officers of the Department of Home Affairs.”

15. The applicant provided evidence to the Tribunal that she performs the following tasks in relation to her role as a Medical Laboratory Scientist:

    a.preparing tissue sections for microscopic examination using slides from patients to analyse;

    b.analysing samples of body tissue and fluids to develop techniques to aid in the diagnosis and treatment of diseases. Whilst this is not diagnostic the process is to find the pathology of the presence of cancer;

    c.advising Medical Practitioners on the interpretation of tests (concerning the status for the research outcome of the patient);

    d.setting up the steps and rules of laboratory medical testing, which is carried out in the laboratory facility;

    e.operating and maintaining laboratory equipment

    f.maintaining laboratory quality assurance and safety standards

    g.preparing scientific papers and reports. In this regard, the applicant is published and is also the lead scientist at the Charles Parkins Centre at the RPA, where the rusults of that research will be published;

    h.studies the formation, early growth and development of living organisms.

16. The applicant stated that the assessing authority had concluded that she did no submit evidence of completion of a full unit in immunology and that she only completed one professional unit of medical biology. However, the applicant stated that her studies with cancer were beyond the limiting unit of immunology. In this regard, the applicant provided evidence that her research in cancer has included a project to find the pathway for recurrent cancer of the prostate.

17. The applicant provided evidence that her work at the Charles Parkins Centre at the RPA is research of the chemical compound to be shown to prevent cancer recurrent and to dissect into different compounds concerning both lung and prostate cancer.

18. The Tribunal also notes that the Minister issued the following statement on 5 May 2021:

    “The Morrison Government today announced that owing to the ongoing unrest in Myanmar, Myanmar nationals currently in Australia on temporary visas may apply to extend their stay until it is safe to return home. The Australian Government will be writing to all Myanmar citizens temporarily in Australia with further advice on how to remain lawful in Australia.”

    Had the applicant applied for a relevant skills assessment?

19. Clause 485.223 requires that when the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated ‘skilled occupation’ by a ‘relevant assessing authority’.

20. ‘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. ‘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).

21. On the evidence before the Tribunal, the applicant nominated the occupation of Medical Laboratory Scientist ANZSCO 234611, which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is the Australian Institute of Medical Scientists (AIMS).

22. As the visa application, when made, was not accompanied by evidence of an application for a skills assessment for the nominated skilled occupation by a relevant assessing authority, the applicant did not satisfy the requirements of cl 485.223, at that time, however, a subsequent assessment was made by the assessing authority, post the delegate’s decision, that stated the applicant had not met the requirements of a skills assessment. The decision of the assessing authority was the subject of the consideration of the Tribunal in the review of the delegate’s decision.

23. The applicant submitted an Australian Institute of Medical Scientists (AIMS) skills assessment that was confirmed in correspondence of 4 May 2020, which was ostensibly for a qualification assessment for Temporary Graduate Visa (Subclass 485) applicant for the nominated occupation of Medical Laboratory Scientist: ANZSCO Code: 234611. Further correspondence from the Australian Institute of Medical Scientists (AIMS), provided the applicant with a response to her representative’s query concerning the correctness of the assessment, which stated:

    “Dear Mr Thapa,

    After receiving your email I examined Dr Hnit’s assessment file and had discussions with our assessment officer. I will address the questions you raised.

    1) Whether it was a typo that resulted in finding "not suitable" in instead of "suitable".

    The result on the letter was not a typo. The AIMS Assessment Committee assessed Dr Hnit's as not suitable for the occupations of either Medical Laboratory Scientist ANZSCO 234611 or Medical Laboratory Technician ANZSCO 311213.

    2)The reasons in the outcome letter are not clear.

    I can offer some further information about Dr Hnit’s assessment results.

    To be classified as a Medical Laboratory Scientist ANZSCO 234611, applicants must satisfy the following requirements:

     Be a graduate of an AIMS accredited degree or a graduate of an acceptable science degree.

    An acceptable science degree should include FULL units (not part units) of the following subjects:

     human anatomy
     human physiology
     chemistry
     biochemistry
     immunology
     general microbiology
     general pathology
     human molecular biology
    and must include at least two (2) of the following professional units:
     clinical chemistry
     haematology
     medical microbiology
     transfusion science (immunohaematology)
     histopathology/diagnostic cytology

    Dr Hnit did not submit evidence of completion of a full unit in immunology and she only completed one (1) professional unit (medical microbiology).

    Additional units can be completed at any university or institution offering an equivalent to an Australian Bachelor degree. We would recommend, if possible, completing additional units at an institution offering an AIMS accredited program.

    The Assessment Committee also noted that Dr Hnit had not submitted proof of completion of two years postgraduate professional experience in a diagnostic medical laboratory. The research assistant and demonstrator experience is not closely related to working in a diagnostic medical laboratory.

    In a previous email you stated 'Please note a PhD degree is awarded after successful completion of the "work" which can also be referred as "employment"'.

    However, the Department of Home Affairs requirements for skilled employment to be considered ‘remunerated’, applicants must be engaged in the occupation on a paid basis, generally at the award or market rate of the occupation. A person receiving minimal living allowances or scholarships designed to cover study expenses would not be considered to be remunerated.

    The minimum requirements for a Medical Laboratory Technician ANZSCO 311213, are that an applicant has completed an award in medical laboratory science assessed as comparable to an Australian diploma (at least AQF Level 5) from a Technical and Further Education College, based on the Australian Government, Department of Education and Training Country Education Profile criteria, plus a minimum of two years diagnostic medical laboratory experience within the five year period immediately prior to applying for assessment OR registration with the Medical Sciences Council of New Zealand OR applicants who have completed an acceptable, but not accredited, science degree and who has not completed the AIMS Professional Examination or the AIMS

    Membership Examination.

    3) No review rights have been given despite having review rights in the assessment guidelines.

    An applicant’s right to a Review and an Appeal are clearly spelt out in the ‘Application For Skills Assessment Guidelines’. AIMS can consider this email as your client’s request for a review “in writing” and we can submit the statements in this email and statements is previous emails to the AIMS Assessment Committee as “reasons for seeking a review”. However, before doing so, your client may wish to address the issue of the two missing units of study in order to provide a complete case.

    4) The assessment has been given for 3 years validity, which is usually given to "suitable" applicants.

    Please ignore this paragraph in the Skills Assessment Results letter. We will reissue a letter with this sentence removed should the review results reconfirm the original assessment.

    5) The applicant has been invited to apply for affiliated membership stating that she is "eligible based on her qualifications".

    As a standard practice we include a membership application form and invitation with all Skills Assessment results. AIMS has multiple levels of membership.

    An Affiliate is a non-voting member who supports the objectives of AIMS.

    We note that Dr Hnit has written the following in her curriculum vitae: “My aim is to develop a career as a Medical Scientist in Medical Research…”. AIMS supports Dr Hnit’s career goal by providing the following membership category for post doctorates:

    MEMBER (Research) - An individual with an acceptable science degree and two years full-time postgraduate professional medical research experience and a Doctoral degree with a thesis relevant to pathology.

    However, Dr Hnit does not hold an acceptable science degree and the AIMS Assessment Committee noted that Dr Hnit’s PhD thesis topic is marginal when considering its relevance to pathology.

    I hope this addresses the issues raised in your email. Dr Hnit’s application will be sent for review after you confirm this course of action, and if, after the review, she still believes that she has been wrongly assessed, the applicant may appeal the assessment. The appeal must be in writing, stating the reasons for the appeal. The appeal will be conducted by a committee other than that which conducted the original assessment.

    To better understand AIMS requirements for skills assessment, I suggest you read the document ‘Application For Skills Assessment Guidelines’ which is available on the AIMS website.”

24. The Tribunal has considered the evidence provided prior to hearing and at hearing and considers that the applicant has qualifications and performs contemporary work that would meet the requirements of the nominated occupation of Medical Laboratory Scientist, particularly given her extensive involvement in prostate and lung cancer research at the Charles Parkins Centre, as the lead scientist and former supervisory tasks in the university laboratory teaching.

    Has the applicant been assessed as suitable for the nominated occupation?

25. Clause 485.224(1) requires that the applicant’s skills for the nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. In addition, if the assessment is expressed to be valid for a particular period, that period must not have ended: cl.485.224(1A).

1. There is an additional requirement if the skills assessment was based on a qualification obtained in Australia while the applicant held a student visa.

2. Whilst the applicant has been assessed by the relevant authority on 4 May 2020, the Tribunal finds that the applicant has suitable qualifications to satisfy the application of skills to the nominated occupation for the following reasons:

   a.The Guide for primary decision makers, as contained in PAM3 and an AAT merits review of Part 5 (reviewable decisions) advises that a skilled occupation assessment by a specified assessing authority is not an opinion that the AAT must accept, as correct. In this regard, the Tribunal finds that the intention of a 485 visa is to provide the applicant with an opportunity to enhance their learning through access to practical on the job work experience.

   b.Whilst, ANZSCO is a valuable tool to be used in the classification of occupations, it provides a basis for the standardised collection, analysis and dissemination of occupation data for Australia and New Zealand. The use of ANZSCO has resulted in improved comparability of occupation statistics produced by the two countries. In addition, ANZSCO is intended to provide an integrated framework for storing, organising and reporting occupation-related information in both statistical and client-oriented applications, such as matching job seekers to job vacancies and providing career information[1]. As such, the Tribunal finds that it should not be construed that a designated skill level, should exclude persons with related qualifications, from accessing career development opportunities in an occupational stream, where the learnings of an applicant are directly matched with the occupation;

   [1] 1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision –June 2009 

   c.The Tribunal is cognisant that ANZSCO has been used in ABS and Statistics NZ censuses and surveys where occupation data are collected from 2006. ANZSCO has also been progressively introduced into administrative data collections and should not be construed as the final arbiter for discerning whether an applicant’s skills and knowledge meet the occupational criteria for the nominated occupation[2]. In these circumstances, it is appropriate for the Tribunal to take a holistic view in the context of the purpose for which the support instrument is intended;

   [2] Ditto

   d.The Department of Immigration and Border Protection’s Discussion Paper Reviewing the Skilled Migration and 400 Series Visa Programmes September 2014 states at page 11:

   “While ANZSCO is a broader occupational classification system than ISCO, it is not a definitive list in Australia. As a result, it is limited in its ability to adapt to changes in existing occupational skill requirements or emerging occupations which are often influenced by rapid developments in technologies. This often results in prospective migrants fitting one or more occupations (or none at all) and confusion among sponsors.”

   e.The Tribunal notes that the EY submission to the Department of Employment’s public consultation on draft methodology for review of skilled migration occupation lists[3], included the following statement:

   “It is widely accepted that ANZSCO is backwards looking and inflexible. It is not exhaustive, does not accommodate roles that require multiskilling nor does it capture emerging occupations. ANZSCO has no capacity to cater to industries of the future and provide a framework to support innovation in Australia.”

   f.The Tribunal notes that the Skills Supply and the ANZSCO Codes: Urgent Concerns and Implications for AgriFood Industry Sustainability by Dr Rochelle Ball and Mark Cody [4], included the following statement:

   “The industry has strong informal recruitment and skilling systems that do not feature in current national skill demand surveys conducted by such agencies as DEEWR. These surveys are used to determine skills shortages by occupation with many Agrifood occupations failing to be recorded on national skilled occupational listings (SOL). Agrifood Industry demand is further thwarted by current classifications and definitions contained in the ABS ANZSCO series. The Agrifood Industry has experienced considerable skills deepening and broadening as new technician and trade level roles become more pronounced across the industry. These roles and the qualifications that match them are commonly not evident within ANZSCO. The flow on effect of the limitations within ANZSCO impact on a wide range of labour market and migration initiatives. At the heart of these impacts is a lack of recognition of the occupations and roles within the Agrifood Industry. Typical results have been a smaller percentage of migrants being deployed to regional areas to work in food and fibre production sectors and numerous industry requests for skilled migrant labour being refused on the basis of incorrect ANZSCO classifications. This paper seeks to identify the main occupational changes within the Agrifood industry and the more obvious gaps within ANZSCO.”

   Consistent with the argument advanced in the Agrifood Industry, the research undertaken by the applicant into lung and prostate cancer, in this case, is clearly involved as a Medical Laboratory Scientist. As such, it would be erroneous to deny an applicant a temporary skills visa to gain experience, where the work performed is clearly research based upon utilising the learnings from the undergraduate and post graduate studies, as a medical scientist.

   [3] Ernst & Young (EY) submission to the Department of Employment’s public consultation on draft methodology for review of skilled migration occupation lists, 20 October 2017.

   [4] Skills Supply and the ANZSCO Codes: Urgent Concerns and Implications for AgriFood Industry Sustainability by Dr Rochelle Ball and Mark Cody (Synopsis on page 1)

3. On the basis of the foregoing commentary and the focus upon the limitations of ANZSCO, the Tribunal is satisfied that the applicant has an appropriate qualification to engage in the nominated occupation of Medical Laboratory Scientist – ANZSCO Code: 234611.

4. Therefore, the requirements of cl.485.224(1) are met.

   How and where was the qualification obtained?

5. If the applicant’s skills were assessed 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.485.224(2)).

6. As submitted by the applicant, the academic transcript relating to the studies undertaken by the applicant for the Bachelor of Medical Science (Honours) with Honours Class II Division I awarded in September 2013 from the University of Western Sydney, Australia as an Australian Bachelor Honours degree; and Doctor of Philosophy awarded in December 2018 from the Western Sydney University, Australia, as an Australian Doctoral degree are qualifications awarded in Australia arising from tuition in Australia.

7. On the evidence before the Tribunal, the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa.

8. Accordingly cl.485.224(2) is not applicable in this case.

   Conclusion on Suitable Skills Assessment

9. It follows that the applicant meets the requirements of cl.485.224.

10. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.223 and 485.224 of Schedule 2 to the Regulations. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.223 of Schedule 2 to the Regulations; and

    ·cl.485.224 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member