Kippen (Migration)

[2023] AATA 693

Kippen (Migration) [2023] AATA 693 (3 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chloe Jeanette Kippen

CASE NUMBER:  2110329

HOME AFFAIRS REFERENCE(S):          BCC2020/1276708

MEMBER:Jennifer Cripps Watts

DATE:3 March 2023

PLACE OF DECISION:  Canberra

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

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 3 March 2023 at 7:30pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Early Childhood (pre-primary school) Teacher – applicant is entitled to a maximum of  95 points under the points test – applicant has achieved the score stated in the invitation to apply for the visa –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 190.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2021 to refuse to grant the applicant a Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 12 February 2020 (time of invitation) and applied for the visa on 29 March 2020.  The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 190.214.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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’.

4. 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).

5. 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 Number 19/051.  In the present case, the applicant nominated the occupation of Early Childhood (pre-primary school) Teacher, ANZSCO code 241111.

6. The reason the visa was refused was because the applicant was assessed as having a score of 90, which was less than the score of 95 stated in the invitation to apply for the visa.  With reference to the primary decision record, under Part 6D the applicant claimed 10 points for her Australian work experience, but was only awarded 5 points.  The applicant has provided the Tribunal with submissions relating to the 5 points shortfall for her Australian employment experience to support her claim to have worked for at least 36 months in the 10 year period immediately before the time of invitation.  The Tribunal has had regard to evidence the applicant provided with the visa application, to the Tribunal on review and to Departmental policy in making the decision.

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

   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

8. 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.

9. The applicant was born in 1993.  At the time of invitation, the applicant aged not less than 25 years and under 33 years.

10. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

11. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. 

12. The applicant has provided documentary evidence with the visa application of a Pearson Test of English Academic (PTE) score, confirming she undertook the test on 26 November 2019.  The applicant achieved, in each of the four components of the PTE a Superior level of English; Listening score 86; Reading score 86; Written score 85; and Speaking score 90.  The applicant has demonstrated Superior English as defined in reg 1.15EA of the Regulations.

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

    Part 6D.3 – Overseas employment experience qualifications

14. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed 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.

15. The applicant has made no claim against part 6D.3 for overseas employment experience qualifications. 

16. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

17. 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.

18. The Tribunal has had regard to the applicant’s documentary evidence and to Departmental policy relating to the applicant’s claim against this part, which includes that:

    ‘The awarding of points for skilled employment factors recognises the benefits of extensive work experience in a nominated skilled occupation or a closely related skilled occupation in providing for successful labour market outcomes.’

    The applicant has provided details of her Australian employment in the nominated occupation, or closely related occupation, of Early Childhood (pre-primary school) Teacher as follows:

    i.From 3 December 2018 up to the date of invitation

    ·Assistant Director, Goodstart Early Learning Early Childhood Teacher from 13 March 2017 to 13 October 2017

    ·With a work reference from Goodstart Early Learning confirming the applicant commenced work full time on 3 December 2018, continuing up to the time of invitation

    ii.From 28 May 2018 to 30 November 2018

    ·Educational Leader/Early Childhood Teacher, Guardian Early Learning Group

    ·With an employment reference confirming the applicant worked full-time as an Early Childhood Teacher on the same dates as the applicant claimed

    iii.From 19 March 2018 to 25 May 2018

    ·Early Childhood Teacher/Room Leader, The Grove Academy Mascot

    ·With a work reference from The Grove Academy confirming the applicant’s employment as an Early Childhood Teacher on a full-time basis from 3 April 2018 to 25 May 2018 *

    iv.From 16 October 2017 to 16 March 2018

    ·Early Childhood Teacher/Room Leader, The Family Works Pty Ltd

    ·With a work reference from Garfield Street Children’s Centre confirming the applicant was employment on a full-time basis as an Early Childhood Teacher on the same dates as the applicant claimed

    v.From 13 March 2017 to 13 October 2017

    ·Educator, Good Start Early Learning

    ·Accompanied by a reference from Goodstart Early Learning (Mosman) confirming the applicant was employed as an Early Childhood Teacher on a part-time basis on the same dates the applicant claimed

19. The Tribunal has considered the applicant’s evidence and is satisfied that the applicant worked in Australia in the nominated, or closely related, occupation for a period totalling at least 36 months in the 10 years up to and including the day before the date of invitation.

20. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

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

21. If an applicant has a qualification mentioned in Part 6D.3 and a qualification in Part 6D.4, and the combined number of points that would be awarded under those Parts for the qualifications is more than 20 points, the Minister must give the applicant 20 points under this Part for the qualifications; and no points are given for Part 6D.3 or 6D.4.

22. The applicant has not made claims under both 6D.3 and 6D.4.  Both parts have been assessed and a total of 10 points given for Part 6D.4.

23. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10 points.  As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

24. 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.

25. The applicant has made no claim under Part 6D.6.

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

    Part 6D.7 – Educational qualifications

27. 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.

28. At the time of invitation, the applicant met the requirements for the award of at least a bachelor degree (as defined in reg 2.26AC(6)) by an Australian educational institution.

29. The relevant instrument specifies the assessing authority for the nominated occupation as Australian Institute for Teaching and School Leadership Limited.

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

    Part 6D.7A – Specialist educational qualifications

31. Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

32. The applicant has made no claim against Part 6D.7A.

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

    Part 6D.8 – Australian study qualifications

34. 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.

35. The applicant has provided evidence with her application that she was awarded a Master of Teaching (Early Childhood) from the University of Sydney.  The Tribunal has considered all relevant matters, with reference to reg 1.15F(2), reg 2.26AC(6) and is satisfied that the qualification was obtained as a result of a course that was a registered course that was completed in a total of at least 16 calendar months as a result of at least 2 academic years study (reg 1.03), for which all instruction was in English, while the applicant held a visa authorising study.

36. As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

37. 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.

38. The applicant has made no claim under Part 6D.9.

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

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

40. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area.

41. The applicant has made no claim against Part 6D.10.

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

    Part 6D.11 – Partner qualifications

43. Ten points may be awarded under this Part if the applicant does not have a spouse or de facto partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

    The Tribunal is satisfied, with reference to the visa application, that the applicant did not have a spouse or de facto partner, or a spouse or de facto partner who is an Australian permanent resident or an Australian citizen.

44. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

45. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa.

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

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

47. 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

48. 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  20 points

    6D.3 - Overseas employment experience   0 points

    6D.4 - Australian employment experience  10 points

    6D.5 - Aggregated employment   0 points

    6D.6 - Australian professional year   0 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational   0 points

    6D.8 - Australian study   5 points

    6D.9 - Credentialled community language   0 points

    6D.10 - Study in designated regional area qualification          0 points

    6D.11 - Partner qualifications  10 points

    6D.12 - State or Territory nomination   5 points

    6D.13 - Designated regional area qualifications    0 points

    Total points  95 points

49. The applicant’s assessed score under the points system is therefore 95 points.

    Qualifying score

50. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 19/051. 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?

51. 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 95 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.

    Conclusion

52. For the above reasons, the applicant is entitled to a maximum of  95 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 190.214, which is a prescribed criterion for the grant of the visa.

53. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

54. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

    ·cl 190.214 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Senior Member