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

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.
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.
The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 14 February 2023 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:
·is not less than the score stated in the invitation to apply for the visa and
·is not less than the ‘qualifying score’.
Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lindog (Migration)

Details

AGLC: Lindog (Migration) [2023] AATA 1820
Case: [2023] AATA 1820
Decision Date: 28 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled Independent (Permanent) visa (Subclass 189). The applicant's nominated occupation was Registered Nurse (not elsewhere classified). The central dispute revolved around whether the applicant met the points test criteria for this visa subclass.

The primary legal issue before the Tribunal was to determine if the applicant's assessed score met or exceeded the qualifying score required for the visa, as well as the score stated in their invitation to apply. This involved assessing the applicant against the qualifications and points prescribed in Schedule 6D to the Regulations, and considering the pass mark in force at the relevant times, applying whichever was more favourable. A further issue was whether the applicant's nominated occupation qualified as a 'skilled occupation' under the relevant legislative instrument.

The Tribunal reasoned that the points test is a statutory scheme where applicants are awarded points for specific attributes, as detailed in Schedule 6D. The applicant's eligibility for points was assessed based on age and English language proficiency at the time of invitation. While the applicant was awarded 30 points for age, the Tribunal found that the evidence provided for English language proficiency, specifically the OET and PTE Academic test results, did not demonstrate the required level of "superior English" or "proficient English" as defined by the regulations at the time of invitation. Consequently, the applicant did not achieve the necessary points for English language proficiency.

As the applicant's total score, even with the points awarded for age, was less than the score stated in their invitation to apply, they failed to satisfy a prescribed criterion for the grant of the visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant the Skilled Independent (Permanent) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:·is not less than the score stated in the invitation to apply for the visa and·is not less than the ‘qualifying score’. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss 93 and 350 of the Act). Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument 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 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 30. 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. 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). 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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