Low (Migration)

Low (Migration) [2020] AATA 4061 (25 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Lydia Wen Ping Low
CASE NUMBER:  1835277
HOME AFFAIRS REFERENCE(S):          BCC2018/2834493
MEMBER:Karen Synon
DATE:25 September 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 25 September 2020 at 7:39pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – points-based test – Juris Doctor course offered, accepted and completed as ‘doctorate’ – AQF and TEQSA requirements for doctoral study – reclassified as ‘masters degree (extended)’ – study in designated regional area – redesignation of applicant’s university as ‘regional’ – partner qualifications – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15D, 1.15F, 26AC(5), (6), Schedule 2, cl 189.224, Schedule 6D
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 12 November 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.
The applicant was invited to apply for the visa on 11 July 2018 and applied for the visa on 28 July 2018. 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 applicant applied for review on 30 November 2018 and provided a copy of the primary decision.
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.
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 (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).
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. In the present case, the applicant nominated the occupation of ‘Solicitor’.
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 26 years. 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 with 20 points available for achievement of the standard of superior English and 10 points available for achievement of the standard of superior English. No points are available for the achievement of the standard of competent English.
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 a Pearson PTE Academic score of least 65 in each of the four test components of speaking, reading, writing and listening.
The applicant provided, with her application, the results of a Pearson PTE Academic English test undertaken on 6 January 2018 with results of speaking – 75, reading - 76, writing – 70 and listening – 67.
Therefore, the applicant is entitled to 10 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 at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant made no claim to be eligible for any points for overseas employment experience.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
It is without contention that the applicant was employed as a law graduate with JGC Oceania Pty Ltd for the period April 2017 to December 2017 and as a Solicitor for the period from December 2017. For this reason, the applicant is entitled to points under part 6D41 for Australian employment experience for a period totalling at least 12 months and less than 36 months immediately before the day on which the application was made.
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 5 points. 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 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
There is no claim made or evidence provided that the applicant has completed one of the specified professional year qualifications.
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 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.
In addition, items 6D71 and 6D72, reg 2.26AC(5) require the Tribunal to have regard to the following matters in determining whether a qualification is of a recognised standard:
·    whether at the time of invitation to apply for the visa the qualification had been recognised by the relevant assessing authority for the applicant’s nominated skilled occupation as being suitable for the occupation;
·    whether the qualification is recognised by a body, specified by the Minister in an instrument in writing for this paragraph;
·    the duration of the applicant’s study towards the qualification; and
·   any other relevant matter.
‘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.
In a submission to the Tribunal the applicant asserted that she believes she is able to claim her Juris Doctor as a doctorate degree on the basis that:
·she made an honest mistake about her qualifications in her EOI application because her Juris Doctor was specified as a doctorate degree on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) at the time however, she later understood that the University of Western Australia had reclassified the Juris Doctor as a Masters degree (extended) in CRICOS.
·However, she later received advice from the Tertiary Quality and Standards Authority that her Juris Doctor was in fact an accredited doctoral degree under CRICOS code 072184B and she did not realise this when she submitted her application in July 2018.
·While the Juris Doctor is now classified as a Masters degree under CRICOS 089786C she does not believe that the revised course level should apply to her because the course offered to her by the University of Western Australia was registered under CRICOS 072184B and this was this course offer she accepted. Further, her Confirmation of Enrolment recorded that it was doctorate degree.
Having reviewed the documents provided the Tribunal fully understands the confusion the change in CRICOS codes has presented. However, the Tribunal must reach a level of satisfaction that her Juris Doctor is in fact a doctoral level qualification. Regulation 2.26AC(6) clearly defines a doctorate qualification as requiring “the 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”. The Tribunal; by reference to the transcript provided is satisfied that the applicant’s Bachelor of Commerce is not an honours award.
Further, as recorded in the primary decision, the Australian Qualifications Framework (AQF),[1] clearly sets out that a doctorate degree (the highest AQF level 10) consists of extensive postgraduate study, including the submission of a thesis or dissertation and qualifies individuals who apply a substantial body of knowledge to research, investigate and develop new knowledge, in one or more fields of investigation, scholarship or professional practice. The two types of doctoral Degree are the Doctoral Degree (Research) and the Doctoral Degree (Professional). Research is the defining characteristic of all Doctoral Degree qualifications with the research Doctoral Degree (typically referred to as a Doctor of Philosophy) making a significant and original contribution to knowledge and the professional Doctoral Degree (typically titled Doctor of [field of study]) making a significant and original contribution to knowledge in the context of professional practice.
[1] >
The Tribunal obverses, after reviewing the applicant’s Juris Doctor transcript, that this as a course work qualification with no reference to any research undertaken. Supporting this view, the current CRICOS information for the Juris Doctor at the University of Western Australia clearly specifies it is a Masters degree (extended) which appears to be a correction to its earlier erroneous course level designation as a doctoral degree.
The Tribunal is therefore satisfied, on the basis of the information before it on the Department file that, at the time of invitation, the applicant had completed a Bachelor of Commerce and a Juris Doctor which, for the reasons above, it finds is a Masters level qualification. Both these courses were completed at the University of Western Australia and the instruction was in English.
Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
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 and which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.
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
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.
As detailed above the Tribunal is satisfied, on the basis of the information before it in the Department file, that, at the time of invitation, the applicant had completed a Bachelor of Commerce and a Juris Doctor at the University of Western Australia. The instruction for both courses was English and they were completed in a total of at least 16 calendar months. These courses both meet the requirements of r1.15F.
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
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.
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.
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
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.
As noted above the applicant satisfied the Australian study requirement while a student at the main campus of the University of Western Australia which is located in postcode 6009.
The delegate awarded no points for this part because, at the time of the primary decision, the postcode 6009 was not specified in the relevant instrument as a designated regional area.
However, with effect from 8 November 2019, legislative instrument LIN 19/217 (Regional Areas) specified the Western Australian postcode group 6000 to 6038 to be designated Australian regional areas.
In a submission to the Tribunal the applicant confirmed the information in her application form that she lived in Perth for the duration of her studies. Further CROICOS confirms that these courses were not distance education.
Therefore, the applicant is entitled to 5 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 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.

Item 6D112 was inserted by F2019L00578 and 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 submission to the Tribunal, is that the applicant does not have a spouse or de facto partner. partner
Therefore, the applicant is entitled to 10 points under this part.
Part 6D.12 – State or Territory nomination qualifications
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
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
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  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  80 points
The applicant’s assessed score under the points system is therefore 80 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 18/067. The applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?
At the time of the Tribunal’s decision the pass mark was also 65 points: Legislative Instrument LIN 19/210.
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 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.
For the above reasons, the applicant is entitled to a maximum of 80 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
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

[2020] AATA 4061

25 September 2020

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Immigration

Statutory Interpretation

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Judicial Review

Jurisdiction

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