Lindog (Migration)

[2023] AATA 1820

Lindog (Migration) [2023] AATA 1820 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sher Edaine Lindog

CASE NUMBER:  2013187

HOME AFFAIRS REFERENCE(S):          BCC2020/1914384

MEMBER:Wan Shum

DATE:28 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 28 March 2023 at 11:24am

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points-based visa – occupation of Registered Nurse – entirety of Australian work experience – skilled occupation – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, Schedule 2, cl 189.224; Schedule 6D; rr 1.15, 2.26

CASES

MIAC v Kamruzzaman (2009) 112 ALD 550
Seema v MIAC [2012] FCA 257

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 24 August 2020 to refuse to grant the applicant a Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) 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 26 May 2020 and applied for the visa on 16 July 2020. The criteria for the grant of a Subclass 189 visa are set out in Part 189 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 which is set out in Schedule 6D of the Regulations.

3. The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 14 February 2023 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

6. 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).

7. 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 LIN 19/210. In the present case, the applicant nominated the occupation of Registered Nurses (not elsewhere classified).

   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. At the time of invitation, the applicant was aged 30. Therefore, the applicant is entitled to 30 points under this Part.

   Part 6D.2 – English language qualifications

10. 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.

11. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, she had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).

12. The applicant submitted the result of an Occupational English Test (OET) taken on 19 May 2018 in which she achieved ‘B” in each of test components. The PTE Academic test taker score report has a test date of 5 July 2020, which is after she was invited to apply but before the final date of she could apply within, and indicates that the applicant obtained 75 in listening, 76 in reading, 65 in speaking and 74 in writing.

13. Based on these results, the applicant has proficient English (as defined in r.1.15F). She is therefore entitled to 10 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 is not claiming to have been employed outside Australia in the nominated skilled occupation or a closely related occupation so has no points under this part.

    Part 6D.4 – Australian employment qualifications

16. 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.

17. On the visa application form, the applicant claimed to have been employed for at least 60 months in the nominated occupation or closely related skilled occupation in the past 10 years in Australia.

18. The section of the form was completed as follows:

    Position:                 Assistant in Nursing

    Employer name:       St Joseph's Aged Care Facility

    Country:                 AUSTRALIA

    Date from:              18 Nov 2013

    Date to:                 14 Apr 2019

    Description of duties: AGED CARE NURSE

    Position: Registered Nurse

    Employer name: Calvary Retirement Community Ryde

    Country: AUSTRALIA

    Date from: 15 Apr 2019

    Date to: 28 Feb 2020

    Description of duties: AGED CARE NURSE

    15 Apr 2019

    Position: Registered Nurse

    Employer name: Prince of Wales Hospital

    Country: AUSTRALIA

    Date from: 02 Mar 2020

    Description of duties: AGED CARE NURSE

19. The delegate did not consider the position of “Assistant in Nursing” could be counted as the applicant was not registered as a nurse until February 2019. The delegate considered that she was entitled to 5 points under this Part because the period of claimed employment was at least 12 months but did not accept that it was more than 36 months.

20. On review, the applicant is seeking for the entirety of her Australian work experience to be counted believing that working as an Assistant Nurse was closely related to her nominated occupation.

21. In considering whether the employment prior to obtaining her qualification can be counted, the Tribunal is to consider not only the tasks for the occupation of Registered Nurse as set out in ANSZCO but also whether the applicant has the minimum skill level specified in ANZSCO.

22. This is because the Federal Court in Seema v MIAC [2012] FCA 257, when considering employment in Australia for an earlier version of the points test, Schedule 6B, found that only employment undertaken after the applicant had attained the necessary skill level qualified as employment in a ‘skilled occupation’ for the purposes of the points test. Whilst the Tribunal is considering Australian employment, a similarly worded requirement existed in an earlier version of the offshore skilled visa (Subclass 138) and was considered by the Federal Court in MIAC v Kamruzzaman (2009) 112 ALD 550, where Greenwood J at [63]-[64] found:

    The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation.  Instead, it contains information as to the qualifications required for entry to that occupation.  The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and/or training, and previous experience.

    In order to determine whether an applicant’s employment fits into a particular ASCO classification, a decision-maker is required to consider all of the details set out in that classification.  However, in making such a decision, the skills that are to be considered are those set out in the “Skill Level” section of the classification to which the applicant’s position is being compared.  That is, the decision requires a consideration of whether the applicant holds the qualifications or experience prescribed for that occupation. 

23. The Tribunal has thus proceeded on the basis that the applicant was required to hold the qualification or the necessary experience set out under the skill level section of ANZSCO for her nominated, or a closely related, occupation. ANZSCO sets out that ‘Registered Nurses’ would have a level of skill commensurate with a bachelor degree or higher qualification and in some instances relevant experience and/or on the job training may be required in addition to the formal qualification.

24. The evidence presented indicates that the applicant did not complete her nursing qualifications until 14 February 2019. During the hearing, the applicant confirmed to the Tribunal that she had not yet received registration as a nurse until February or March 2019. The Tribunal does not consider on the evidence presented that she had a level of skill commensurate to a bachelor degree of higher qualification prior to that date. As such, her employment prior to that date cannot be counted for the purposes of this part.

25. The applicant also confirmed that she was not employed as a Registered Nurse until 15 April 2019. Prior to that she had worked at St Joseph's Aged Care Facility and was employed as a ‘Carer Certificate 3’, which she explained involved providing personal care to the residents of an aged care home.

26. The Tribunal explained to the applicant that the meaning of “skilled occupation” is a defined term in the Regulations and that it refers to an occupation that is specified by the Minister, in this case LIN 19/051, and that for Subclass 189 applications, it is the Medium or Long Term Skilled Occupation List that is relevant. The Tribunal read out the occupations that have “nurse” in the title but these were for registered nurses, in a specialisation such as aged care, and/or enrolled nurse, nurse practitioner.

27. The Tribunal referred to ANZSCO and expressed the view that it appeared that her position at St Joseph's Aged Care Facility aligned to Unit Group 4233 ‘Nursing Support and Personal Care Workers’ specifically the occupation of ‘Personal Care Assistant’. The Tribunal notes its view is supported by the Australian College of Nursing (ACN) who defines an assistant in nursing as a “health care worker who supports the delivery of nursing care by assisting people with personal care and activities of daily living. Similar titles may include but are not limited to “Aged Care Worker (ACW), Personal Care Assistant (PCA), Care Support Employee (CSA) and Health Services Assistant”.[1] The Tribunal notes that certain other occupations, such as community worker, are listed in the instrument but in the Short-term Skilled occupation list which means it does not meet the definition of “skilled occupation”. The occupation of assistant in nursing (however titled) are not specified in Schedule 1 of the applicable instrument and are therefore not “skilled occupations” as defined.

    [1] (accessed 1 March 2023). According to the Australian Nursing and Midwifery Federation, the assistant in nursing assists registered nurses and enrolled nurses in the provision of delegated aspects of nursing care within the limits specified by their education, training and experience. At all times, assistants in nursing work within a plan of nursing care developed by the registered nurse, and work under the supervision and direction of a registered nurse and, where deemed appropriate by the registered nurse, an enrolled nurse. (accessed 1 March 2023).

28. The applicant referred to her continued employment as a registered nurse since the invitation and application were made, which the Tribunal accepts on the evidence provided. While that employment would no doubt reflect that the applicant has the skills and experience for the occupation of Registered Nurse, the Tribunal is unable to count this period of employment for the purposes of this Part as the relevant point in time for calculating the total length of employment in Australia in the nominated skilled occupation or a closely related occupation was at the time of invitation. The Tribunal has no power or discretion to take into account employment after the period of time of invitation ceased. Having counted her period of employment as a registered nurse from 15 April 2019 up to 24 July 2020, the Tribunal finds that the applicant was employed in Australia as a registered nurse for 15 months.

29. The applicant and her spouse sought further time to provide additional information but nothing further has been received to date.

30. 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

31. 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.

32. The applicant does not have qualifications in both Parts 6D.3 and 6D.4 and is not entitled to points under this part.

    Part 6D.6 – Australian professional year qualifications

33. 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. The relevant instrument (LIN 18/170) specifies that the Professional Year Program provided by: the Australian Computer Society which is available to information technology graduates; (b) Chartered Accountants Australia and New Zealand, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates; by Engineers Australia which is available to engineering graduates.

34. The applicant indicated that she did not complete a professional year. Therefore, she is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

35. 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.

36. The applicant’s highest qualification is a Bachelor of Nursing awarded by University of Technology Sydney. This degree was completed on 14 February 2019.

37. This qualification was recognised by Australian Nursing & Midwifery Accreditation Council (ANMAC), the relevant assessing authority for the applicant’s nominated skilled occupation, as being suitable for the occupation of Registered Nurse (not elsewhere classified) as at 24 April 2019.

38. The Tribunal finds that the applicant was awarded a bachelor degree by an Australian educational institution, and is therefore entitled to 15 points.

    Part 6D.8 – Australian study qualifications

39. 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.

40. The applicant meets this requirement on the basis of her Diploma and Bachelor studies which were undertaken in Australia and is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

41. 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.

42. The applicant is not claiming, and she is not entitled to, points under this Part.

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

43. 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. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this part.

44. Therefore, the applicant is not entitled to points under this part.

    Part 6D.11 – Partner qualifications

45. 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.

46. She had previously been awarded 10 points under this part as she did not have a spouse or de facto partner. The applicant advised the Tribunal that she now has a de facto partner who is a New Zealand citizen. Given this, the applicant is not entitled to points under this part.

    Part 6D.12 – State or Territory nomination qualifications

1. 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

2. 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

3. 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  0 points

   6D.4 - Australian employment experience  5 points

   6D.5 - Aggregated employment  NA

   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  0 points

   6D.12 - State or Territory nomination  0 points

   6D.13 - Designated regional area nomination or

   
   

   sponsorship qualifications   0 points

   Total points  65 points

4. The applicant’s assessed score under the points system is therefore 65 points.

5. At the time of the delegate’s and the Tribunal’s assessment the pass mark was 60 points. The applicant has achieved the qualifying score to pass the points test.

6. However, 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 85 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.

7. For the above reasons, the applicant is entitled to a maximum of 65 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

8. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

   Wan Shum
   Member