Lopez (Migration)

[2020] AATA 4502

Lopez (Migration) [2020] AATA 4502 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lorraine Lopez
Mr Eumer Henry Lopez

CASE NUMBER:  1824248

HOME AFFAIRS REFERENCE(S):          BCC2017/3705417

MEMBER:Kira Raif

DATE:27 October 2020

PLACE OF DECISION:  Sydney

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

·cl.189.224 of Schedule 2 to the Regulations.

Statement made on 27 October 2020 at 3:17pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – points test – delegate assessed applicant’s total as equal to qualifying score but less than score stated in invitation to apply – partner qualifications – separated, husband left Australia, intention to divorce – points for not having spouse or de facto partner – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350
Migration Regulations 1994 (Cth), rr 1.15F, 1.15I, 2.26AC, Schedule 2, cl 189.224, Schedule 6D.11

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 16 August 2018 to refuse to grant the applicants visas 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 visa applicants are national of the Philippines. The first named applicant (the applicant) was invited to apply for the visa on 6 September 2017 and applied for the visa on 10 October 2017. The delegate found that the applicant did not meet cl. 189.224 because the applicant did not achieve the score specified in the invitation. The applicant seeks review of the delegate’s decision.

3. The first named applicants appeared before the Tribunal on 21 October 2020 to give evidence and present arguments. The applicant requested the Tribunal to take oral evidence from her employer who would confirm that the applicant is an essential worker. As the Tribunal accepts that evidence, the Tribunal decided that it was not necessary to take oral evidence from that witness. The applicant was represented in relation to the review by their registered migration agent.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

6. 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. 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’.

7. 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).

8. 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).

   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

9. 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.

10. The visa applicant was born in January 1989 and was 28 years of age at the time of the invitation. 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 provided with her application the results of an OET test which shows that she achieved the score to evidence proficient English. The applicant is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

13. 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.

14. The applicant does not claim to have completed relevant employment overseas. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

15. 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.

16. The applicant does not claim to have completed relevant employment in Australia. 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

17. 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.

18. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0. 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

19. 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.

20. The applicant presented no evidence, and does not claim to have completed a professional year in Australia. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

21. 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.

22. The applicant provided with her application evidence of having completed a Bachelor of Nursing, which includes a copy of the award, a letter of completion issued by UTS, academic transcript and other documents. The Tribunal is satisfied that the applicant had met the requirements for the award of a bachelor degree by an Australian educational institution. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

23. 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.

24. The applicant does not claim to have completed a masters or a doctoral degree. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

25. 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.

26. The applicant provided with her application evidence that she completed a Bachelor of Nursing at the University of Technology (UTS), Sydney, between February 2014 and May 2016. The Tribunal is satisfied the applicant had completed a degree, which was a registered course, which was completed in at least 16 calendar months and 2 academic years. The Tribunal is satisfied the study was completed in English and that the applicant held a visa authorising her to study.

27. 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

28. 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.

29. The applicant has not presented evidence of having a qualification in a particular language. Therefore, the applicant is entitled to no points under this part.

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

30. 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.

31. The applicant provided evidence of having completed her degree at UTS, postcode 2007. The applicant confirmed in her submission to the delegate that she did not study in a regional area and had mistakenly ticked the wrong box on the form. In her written submission to the Tribunal the applicant also explained the circumstances in which she prepared the application and stated that she made a mistake when referring to regional study. The applicant confirmed that she completed her study at UTS Kuring-Gai campus.

32. As the applicant completed her study in Sydney, the Tribunal is not satisfied the applicant completed her study in a designated regional area. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner qualifications

33. 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.

34. The applicant indicated on the application form that she has a partner and the applicant confirmed in oral evidence that her partner did not complete a skills assessment and the language test. However, the applicant informed the Tribunal in oral evidence that she had separated from her partner and she intends to apply for a formal divorce but she has not been able to get in touch with her husband. The applicant told the Tribunal that her husband had left Australia.

35. In her written submission to the Tribunal of 27 October 2020 the applicant provided a number of further documents concerning her relationship with her partner. The applicant provided evidence that Mr Lopez left Australia in September 2019. The review applicant provided evidence of having received counselling following the breakup of her relationship in 2019-20, evidence that the applicant requested the removal of her spouse from the health insurance policy and a statement from her mother in law attesting to the breakdown of the relationship in 2019. The applicant provided a declaration outlining the circumstances of the marriage breakdown.

36. Having regard to that evidence, the Tribunal is satisfied, on balance, that the applicant is no longer in a spousal relationship with the second named applicant. There is no evidence that they share the household or have any joint financial arrangements. There is no evidence that they continue to represent themselves to others as being in a relationship, plan or undertake joint social activities. There is no evidence that they maintain a mutual commitment to the relationship. The Tribunal finds, in such circumstances, that at the time of this decision, the applicant does not have a spouse, despite the absence of a formal divorce.

37. The Tribunal is mindful that should further information come to light in the future which would suggest that the applicant and her husband do maintain a spousal relationship, consideration may be given to the cancellation of the applicant’s visa. However, at present, the Tribunal is satisfied on the basis of provided evidence that the applicant does not have a spouse or de facto partner. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

38. 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

39. 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

40. 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        0 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  70 points

41. The applicant’s assessed score under the points system is therefore 70 points.

42. At the time of the delegate’s assessment the pass mark was 60 points. 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?

43. 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.

44. In her submission to the Tribunal the applicant states that the delegate incorrectly referred to the pass mark of 65 points. The applicant notes that as soon as she realised the error, she notified the Department. The Tribunal accepts that evidence and accepts that the applicant made a mistake when completing her paperwork. However, the applicant concedes that the invitation score was 65 points and the applicant is required to meet that score.

45. The Tribunal finds that the written invitation given to the applicant stated a score of 65 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.

46. The applicant’s evidence to the Tribunal is that she is no longer in a relationship with the second named applicant. The Tribunal makes no findings in relation to the secondary applicant.

    Conclusion

47. For the above reasons, the applicant is entitled to a maximum of 70 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

48. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.224 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member