Lock (Migration)

[2020] AATA 4598

Lock (Migration) [2020] AATA 4598 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bronwen Helen Lock

CASE NUMBER:  1900127

HOME AFFAIRS REFERENCE(S):          BCC2017/4774221

MEMBER:Karen Synon

DATE:6 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

·cl.189.224 of Schedule 2 to the Regulations.

Statement made on 06 October 2020 at 12:37pm

CATCHWORDS

MIGRATION - Skilled Independent (Permanent) visa – Subclass 189 – Points test criterion – applicant achieved qualifying score – achieved score stated in the invitation to apply for visa – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350, 360

Migration Regulations 1994, r 2.26AC; Schedule 2, cl 189.224

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 18 December 2018 to refuse to grant the applicant a visa under s.65 of the Migration Act 1958 (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 22 November 2017 and applied for the visa on 14 December 2017. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.224.

3. The applicant applied for review on 3 January 2019 and provided a copy of the primary decision.

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

5. Based on the evidence before it and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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’.

8. 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 (r.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).

9. 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 (r.1.15I).  The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.

10. In the present case, the applicant nominated the occupation of ‘Registered Nurse (nec)’.

    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

11. 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.

12. At the time of invitation, the applicant was aged 25.  Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

13. 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 with 20 points available for achievement of the standard of superior English and 10 points available for achievement of the standard of proficient English.  No points are available for the achievement of the standard of competent English.

14. Proficient English is defined in Regulation 1.15D to be a person who achieved a specified score in a specified English language test conducted in a specified period.  Proficient English requires an operational command of English with the ability to use and comprehend complex language well and understand detailed reasoning.  Relevantly, legislative instrument IMMI 15/005 specifies an IELTS test result of at least 7.0 in each of the four test components of speaking, reading, writing and listening.

15. The applicant provided, with her application, the results of an IELTS test result undertaken on 25 May 2017 with results of speaking – 9.0, reading – 7.5, writing – 7. 0 and listening – 8.5.

16. Therefore, the applicant is entitled to 10 points under this Part.

    Part 6D.3 – Overseas employment experience 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 outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.

18. The applicant made no claim to be eligible for any points for overseas employment experience.

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

    Part 6D.4 – Australian employment qualifications

20. 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

21. The applicant claimed 10 points for the following Australian employment:

    ·     Home Care for Platinum Health for the period 2 August 2013 until 12 September 2016; and

    ·     Community Nurse for Avivo for the period 28 June 2017 until 22 November 2017 (the invitation date).

22. In support of these claims and at the request of the Department, the applicant provided:

    ·     Avivo Reference letter as a Casual Community nurse dated 1 December 2017;

    ·     Platinum Healthcare Group Pty Ltd dated 12 September 2016;

    ·     Nursing registration from 1 June 2016 to 31 May 2017; and

    ·     ANMAC Skills assessment dated 22 May 2016.

23. To be awarded points under this part the employment must be in the applicant’s nominated occupation of Registered Nurse or a closely related skilled occupation.

24. The role and duties of a Registered Nurse are set out as follows in ANZSCO:

    UNIT GROUP 2544 REGISTERED NURSES

    REGISTERED NURSES provide nursing care to patients in hospitals, aged care and other health care facilities, and in the community.

    INDICATIVE SKILL LEVEL:

    In Australia and New Zealand:

    Occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).  Registration or licensing is required.

    TASKS INCLUDE:

    ·assessing, planning, implementing and evaluating nursing care for patients according to accepted nursing practice and standards

    ·working in consultation with other Health Professionals and members of health teams, and coordinating the care of patients

    ·providing interventions, treatments and therapies such as medications, and monitoring responses to treatment and care plan

    ·promoting health and assisting in preventing ill health by participating in health education and other health promotion activities

    ·answering questions and providing information to patients and families about treatment and care supervising and coordinating the work of Enrolled Nurses and other health care workers

25. The Tribunal accepts that the applicant’s employment experience as a Community Nurse for Avivo for the period 28 June 2017 until the date of invitation to apply for the visa on 22 November 2017, is employment in the applicant’s skilled occupation.  However, this employment constitutes a period of less than 12 months.

26. The applicant’s claimed employment experience as a Home Care employee for Platinum Healthcare Group Pty Ltd was supported by a letter from the employer setting out her duties as “personal care and support services to clients requiring extra help due to specific physical problems or frailty” with:

    ·Provision of personal care

    ·Supervising daily hygiene

    ·Assisting in dressing, mobility and transfers

    ·Make beds

    ·Tidy rooms

    ·Preparation and cooking of meals and assistance with meals

    ·Fitting and removal of aids and appliances

    ·Monitoring medications

    ·Continence management

    ·Assistance with communication

    ·Accompanying clients on outings and to appointments

    ·Domestic assistance.

27. In assessing if this employment experience is in the applicant’s skilled occupation of Registered Nurse or a closely related skilled occupation, the Tribunal has referred to the ANZSCO Unit Group of Aged and Disabled Carer’ (423111) which summaries this with the lead statement “Aged and Disabled Carers provide general household assistance, emotional support, care and companionship for aged and disabled persons in their own homes”.  The tasks of this occupation group are listed in ANZSCO as:

    ·accompanying aged and disabled persons during daily activities

    ·assisting clients with their mobility

    ·preparing food for clients

    ·arranging social activities

    ·performing housekeeping tasks such as vacuuming and cleaning

    ·assisting in personal hygiene and dressing

    ·providing companionship, friendship and emotional support

    ·may do shopping and run errands

    ·may live in with the person

28. After considering the duties listed in ANZSCO for a Registered Nurse and the duties outlined in the reference letter from Platinum HealthCare Pty Ltd, the Tribunal is not satisfied that these duties as a Home Care employee equate to employment in the applicant’s nominated skilled occupation or a closely related skilled occupation.

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

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

30. 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.

31. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5.  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

32. 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.  Relevantly to this matter, Legislative Instrument IMMI 12/029 specifies the Professional Year Programs provided by the Institute of Chartered Accountants, the Certified Practising Accountants Australia and the Institute of Public Accounting.

33. There is no claim made or evidence provided that the applicant has completed one of the specified professional year qualifications.

34. Therefore, the applicant is entitled to no 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, 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. ‘Degree’ is defined in reg 2.26AC(6) as follows:

    means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:

    (a)    the entry level to the course leading to the qualification is:

    i.in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    ii.in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    iii.in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    iv.in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)      in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.

37. The delegate was satisfied, as is the Tribunal, that the applicant’s nursing studies culminating in her Bachelor of Nursing completed at The University of Notre Dame Australia in December 2015, meet the requirements for the award of at least a bachelor qualification by an Australian educational institution.

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

    Part 6D.7A – Specialist educational qualifications

39. Ten 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 r.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.

40. There is no evidence before the Tribunal that the applicant completed a specialist educational qualification and, as such, she is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

41. 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.

42. As detailed above the Tribunal is satisfied, on the basis of the information before it that, at the time of invitation, the applicant had completed a Bachelor of Nursing at The University of Notre Dame Australia.  This was preceded by a Diploma of Nursing at the West Coast Institute of Training .  The instruction for both courses was English and they were completed in a total of at least 16 calendar months.  These courses meet the requirements of r1.15F.

43. 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

44. 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.

45. In relation to this part, the Minister has specified, in IMMI 12/020, the National Accreditation Authority for Translators and Interpreters (NAATI) as a credentialled community language body; and the standard for the purposes of paragraphs part 6D.9 as accreditation at the paraprofessional interpreter or translator level or above.

46. The applicant has made no claims and nor is there any evidence that she qualifies for any points in this part.  As such she is entitled to 0 points.

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

47. 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 designated regional area.  Distance education does not qualify as study for these purposes.

48. The applicant satisfied the Australian study requirement while a student at the University of Notre Dame of Australia located in Freemantle, Western Australia in the postcode 6160.

49. Documents received on 6 October 2020 record that the applicant studied in Perth and confirms the applicant’s addresses, while undertaking her nursing degree, were:

    ·3/18 Wyong Road, Bentley, Western Australia, 6102; and

    ·2 Park Road, Nedlands, Western Australia, 6009

50. The delegate awarded no points for this part because, at the time of the primary decision, postcodes 6009, 6012 and 6160 were not specified in the relevant instrument as a designated regional area.

51. However, with effect from 8 November 2019, legislative instrument LIN 19/217 (Regional Areas) specified the Western Australian postcode group 6000 to 6038 and 6090 to 6182 as designated Australian regional areas.

52. As the applicant studied and lived in a designated regional area and her studies were not conducted via distance education, she is now entitled to points under part 6D.10.

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

    Part 6D.11 – Partner qualifications

54. Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de factor 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 / 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/partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

1. Item 6D112 provides for 10 points to be awarded to the applicant if she does not have a spouse or de facto partner, or she has a spouse or de facto partner who is an Australian permanent resident or an Australian citizen.

2. The availability for points under Item 6D112 commenced on 16 November 2019 and applies to all applications not finally determined by then.  The information provided in the application form and confirmed in a statutory declaration provided to the Tribunal, is that the applicant does not have a spouse or de facto partner.

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

   Part 6D.12 – State or Territory nomination qualifications

4. 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

5. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - 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

6. 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     0 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   5 points

   6D.11 - Partner qualifications  10 points

   6D.12 - State or Territory nomination   0 points

   6D.13 - Designated regional area nomination or sponsorship qualifications         0 points

   Total points  75 points

7. The applicant’s assessed score under the points system is therefore 75 points.

8. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017.  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?

9. 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 70 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.

10. For the above reasons, the applicant is entitled to a maximum of 75 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.189.224, 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.

    DECISION

11. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.224 of Schedule 2 to the Regulations.

    Karen Synon
    Member