Ling Chuo Shern (Migration)

Ling Chuo Shern (Migration) [2023] AATA 2055 (2 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sebastian Dominic Ling Chuo Shern
Ms Cathryn Lynn Leslie
REPRESENTATIVE:  Mr Richard Tan (MARN: 0429043)
CASE NUMBER:  2017416
HOME AFFAIRS REFERENCE(S):          BCC2020/2420685
MEMBER:Amanda Mendes Da Costa
DATE:2 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:
·cl 190.214 of Schedule 2 to the Regulations.

DECISION:The Tribunal considers that the second named applicant should be reconsidered on the basis she meets the secondary criteria for the grant of a Skilled Nominated (Permanent) visa.
Statement made on 2 May 2023 at 10.20am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ‘points test’ criterion – General Practitioner – Overseas employment experience qualifications – Australian employment qualifications – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 190.214

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 19 November 2020 to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas 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 first named applicant (the applicant) was invited to apply for the visa on 5 October 2020 (with an invite score of 85 points) and applied for the visa on 5 October 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.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicants were represented in relation to the review.
In making its decision, the Tribunal has considered the material in both the Departmental and Tribunal files.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 IMMI 19/051. In the present case, the applicant nominated the occupation of General Practitioner ANZSCO Code 253111.
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.
The applicant provided his passport to the Department which shows that he was born on 30 November 2986. Therefore, at the time of invitation the applicant was aged not less than 33 years and under 40 years and is therefore entitled to 25 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.
Regulation 1.15EA provides:
A person has Superior English if:
(a)The person undertook a language test, specified by the Minister in writing for this paragraph; and
(aa) the person is an applicant for a visa; and
(b)the test was conducted in the 3 years immediately before the day on which the Minister invited the person under these Regulations, in writing, to apply for the visa; and
(c)the person achieved a score specified in the instrument.
The current legislative instrument prescribes that the following scores are required for ‘Superior English’:
·     An IELTS test score of at least 8 for each of the four test components of speaking, reading, writing and listening; or
·     A score of at least “A” in each of the four components of an OET; or
·     A Test of English as a Foreign Language internet-Based Test (TOEFL IBT) with at least the following scores for each of the four test components: 28 for listening, 29 for reading, 30 for writing and 26 for speaking.
·     A Pearson Test of English Academic (PTE Academic) score of at least 79 for each of the four test components of speaking, reading, writing and listening; or
·     A Cambridge English; Advanced (CAE) score, from a test conducted on or after 1 January 2015, of at least 200 for each of the four test components of speaking, reading, writing and listening.
The applicant provided the following information in support of his English language claims:
Name of test:              PTE Academic
Registration ID:          360677696, Score Report Code:   100904NSAW
Date of test:                6 October 2019
Listening:  89
Reading:  79
Writing:  86
Speaking:                   79
Based on the above test result, the Tribunal is satisfied that the applicant has Superior English as defined in reg 1.15EA.
Therefore, the applicant is entitled to 20 points 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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.
In his visa application form, the applicant claimed the following overseas employment in relation to his nominated skilled occupation of general Practitioner ANZSCO Code 253111:
Position:    Medical Officer
Employer name:    Ministry of Health Malaysia
Country:   Malaysia
Date from:   8 November 2010
Date to:    30 May 2018
The Tribunal notes that the applicant answered “No” to questions about whether this employment was related to the nominated position and whether the applicant had been employed overseas in his nominated occupation or a closely related occupation at a skilled level, immediately before the invitation to apply for the visa.
The applicant provided a skills assessment as a General Medical Practitioner ANZSCO Code 253111 from The Medical Board of Australia AHPRA with an expiry date of 30 September 2021.
The applicant has provided the Tribunal with the following documentation regarding his overseas work experience:
·Reference, Dr Shamina Sara Moses, undated.
·Evidence of Completion of House Officer Training, Dr Chin Zin Hing, dated 20 March 2018.
·Income statements for years ending 31 December 2012, 31 December 2013, 31 December 2014, 31 December 2015, 31 December 2016 and 31 December 2017.
·Income tax statement for the year ended 31 December 2018.
Dr Moses is a medical practitioner and Head and neck Specialist employed by the Sarawak general Hospital, Sarawak, Malaysia.
In her reference, Ms Moses states that the applicant was employed (on a full-time basis) as a House Officer by the Ministry of Health at Sarawak General Hospital, form 8 November 2010 to 6 November 2012. He was subsequently employed as a Medical Officer by the Ministry at Sarawak Hospital from 7 November 2012 to 30 May 2018.
Dr Moses attest that during the period of the applicant’s employment at the Hospital, his duties included performing ward rounds, caring for stable and critically ill patients, performing day care procedures, assisting surgeons in complex surgical procedures, managing patients in the general and specialist clinics and preparing discharge summaries for patients.
Dr Hing is the director of the Sarawak general Hospital. In his Completion letter he states that the applicant was employed as House Officer at the Hospital from 8 November 2010 to 7 November 2012, during which period he satisfied all the necessary requirements and completed his compulsory Internship Training during rotations in Surgery, obstetric & Gynaecology, medical, Paediatric, Orthopaedic and Emergency & Trauma Departments.
Dr Hing further states that the applicant has been granted full medical registration by the Malaysian Medical Council and transferred from the Hospital in October 2017.
The income and tax statements show that the applicant was employed by the Ministry of Health, Sarawak, Malaysia during the period 1 January 2012 to 31 December 2017.
Based on the evidence before it, the Tribunal is satisfied that at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the nominated skilled occupation or a closely related occupation for a period of 72 months. The Tribunal is therefore satisfied that the applicant meets the requirements of Part 6D32 (a period totalling at least 60 months and less than 96 months in the relevant period.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
In his visa application form, the applicant provided the following information regarding his Australian employment:
Position:    Senior House Officer
Employer name:   Queensland Health
Country:   Australia
Date from:   28 June 2018
Date to:   26 January 2020
Position:    General Practitioner
Employer name:    Portland Family Practice
Country:    Australia
Date from:    6 April 2020
The Tribunal notes that the applicant provided the Department with evidence of his Australian employment experience in the form of his individual taxation returns for the period 6 April 2020, tax invoices for the months of July 2020 to August 2020, statement of service issued by Portland Family Practice dated 24 September 2020, position description and employment agreement dated 16 March 2020.
Departmental records further show that the applicant was a previous holder of a subclass GK 482 visa as a Resident Medical Officer and that his employment was sponsored by the Department of Health Queensland during the period 2018 to 2020.
Based on this information, the Tribunal is satisfied that the applicant was employed in his nominated skilled occupation for at least 12 months in the 10 years immediately before the invitation to apply for the visa.
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.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 20. 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
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.
The applicant has made no claims and provided no evidence of completing a Professional Year.
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 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.
The applicant provided the following information regarding his completed education history:
Qualification:   Bachelor’s degree
Course name:   Medicine
Institution name:   International Medical University
Country of institution:   Malaysia
Date from:   21 August 2005
Date to:    21 August 2010
Qualification: Advanced Diploma
Course name: MRCS
Institution name: Royal College of Surgeons of Edinburgh
Country of institution:   United Kingdom
Date from:   11 September 2012
Date to:    24 April 2015
Based on the above information, the Tribunal is satisfied the applicant meets the requirements for the award of a Bachelor qualification by an overseas educational institution. Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
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 master’s 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.
The applicant has made no claims and provided no evidence of meeting the specialist education qualification requirement at the time of the invitation to apply for the visa.
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 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.
The applicant has made no claims and provided no evidence of meeting the Australian study requirements before the time of invitation to apply for the visa.
As the Australian study requirement had not been met at the time of invitation, 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.
The applicant has made no claims and provided no evidence of that he was the holder of a qualification awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa.
Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in designated regional area qualification
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. Distance education does not qualify as study for these purposes.
The applicant has made no claims and provided no evidence that he met the study in a designated regional area qualification. Accordingly, the applicant is entitled to no points under this part.
Part 6D.11 – Partner qualifications
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.
Based on the evidence before it, the Tribunal is satisfied that the applicant has a spouse (Cathryn Lynn Leslie) who is an applicant for the same subclass of visa as the applicant; is not an Australian citizen or permanent resident; and at the time of invitation to apply for the visa had Competent English.
Therefore, the applicant is entitled to 5 points under this part.
Part 6D.12 – State or Territory nomination qualifications
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.
As the applicant was invited to apply for a subclass 190 visa and the nomination of the Government of Victoria has not been withdrawn. Therefore, the applicant is entitled to 5 points under this part.
Part 6D.13 – Designated regional area nomination or 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 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
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  25 points
6D.2 - English language  20 points
6D.3 - Overseas employment experience  10 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 designated regional area qualification        0 points
6D.11 - Partner qualifications  5 points
6D.12 - State or Territory nomination  5 points
6D.13 - Designated regional area nomination or sponsorship qualifications    - points
Total points  85 points
The applicant’s assessed score under the points system is therefore 85 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. 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?
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 achieved the score stated in the invitation to apply for the visa.
For the above reasons, the applicant is entitled to a maximum of 85 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. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.
Given the Tribunal’s findings regarding the applicant, it is satisfied that the second named applicant meets the secondary criteria for the grant of a subclass 190 visa.
DECISION
The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:
·cl 190.214 of Schedule 2 to the Regulations.
The Tribunal considers that the second named applicant meets the secondary criteria for the grant of a Skilled Nominated (Permanent) visa.
Amanda Mendes Da Costa
Member

[2023] AATA 2055

2 May 2023

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

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