Malara (Migration)

[2019] AATA 5914

Malara (Migration) [2019] AATA 5914 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Danilo Malara
Ms Valeria Gucciardi
Miss Azzurra Sydney Malara

CASE NUMBER:  1823025

HOME AFFAIRS REFERENCE(S):          BCC2018/135941

MEMBER:Denise Connolly

DATE:20 December 2019

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 20 December 2019 at 10:42am

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) – Subclass 189 Skilled Independent – skilled occupation test – PhD candidate – scholarship advertised – applicant held qualification/experience – achieved score of 75 – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 189.224, rr 1.15F, 2.26AC

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 31 July 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 first named applicant (the applicant) was invited to apply for the visa on 22 November 2017 and applied for the visa on 9 January 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.

3. The applicants were represented in relation to the review by their registered migration agent.

4. The Tribunal was able to make a favourable decision on the evidence before it so it was not necessary to invite the applicant to a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). The relevant instrument for this purpose is Legislative Instrument IMMI 17/072. In the present case, the applicant nominated the occupation of Agricultural Scientist.

   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 applicant has provided his passport details and his birth certificate which record that he was born on 17 June 1983.

11. At the time of invitation the applicant was aged 34. Therefore, the applicant is entitled to 25 points under this part.

    Part 6D.2 – English language qualifications

12. 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.

13. The applicant has provided evidence that he undertook an IELTS test on 5 March 2016 in which he scored 6.5 for listening, 7.0 for reading, 6.0 for writing and 7.0 for speaking. The applicant therefore has competent English. The applicant did not achieve the required score for proficient for superior English.

14. Therefore, the applicant is entitled to no points under this part.

    Part 6D.3 – Overseas employment experience 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 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.

16. The applicant did not make any claims to have been employed overseas in his nominated occupation or a closely related occupation at a skilled level, immediately before the invitation to lodge the visa application.

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

    Part 6D.4 – Australian employment qualifications

18. 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.

19. In the visa application the applicant indicated he had not been employed in his nominated occupation or a closely related occupation at a skilled level immediately before invitation to lodge the visa application. However he indicated that he was employed as a PhD researcher with scholarship at the James Cook University in the period 23 July 2013 to 7 December 2017 where he conducted research as part of his PhD.

20. The delegate has recorded that the applicant claimed points for Australian employment while at James Cook University as a PhD candidate and provided evidence of the scholarship for tuition fees and fortnightly living allowance as he was required to commit at least 40 hours a week to his study. The delegate formed the view a person receiving minimal living allowances or a scholarship designed to cover expenses would not be considered to be remunerated. She therefore found that she was unable to award points for the employment the applicant claimed. She gave the applicant opportunity to comment on her preliminary view.

21. The applicant provided evidence that he was in receipt of a Postgraduate Research Scholarship commencing on 23 July 2013 for 3½ years. He was paid $56,653 per year. He also provided a contract indicating that he was paid holidays, 4 weeks for each year of the scholarship. He provided information from Vetassess which records:

    …in order to consider employment undertaken for completing a PhD for the Points Test purposes the employment would need to be paid, at least 20 hours per week and the tasks performed should be at the required skill level and highly relevant/closely related to the nominated occupation. PhD research tasks which are unpaid cannot be assessed for employment…

    For scientist occupations such as Agricultural Scientist, Physicist and Chemist it may be possible to consider your doctoral degree studies to meet our employment criteria for the skills assessment purposes. PhD level studies may be considered if you are able to demonstrate that the work has been performed at the required skill level of the nominated occupation, is at least 20 working hours per week, and is paid. You will be required to provide official employment evidence supporting paid research employment performed at this (doctoral degree) level. Please note that evidence of remuneration would include scholarship grants (full tuition fee coverage and stipend) supporting research studies at the doctoral degree level. Please also note that the employment/research period may only be considered suitable if your paid research closely matches the major tasks usually undertaken in the occupation in Australia. PhD research which is unpaid cannot be considered for skills assessment purposes. Partially funded PhD studies will also not be accepted.

22. The applicant was awarded his doctorate in Science and Engineering, Aquaculture on 7 December 2017.

23. The applicant provided his Vetassess Skilled Migration Assessment dated 6 April 2016 which records that his skills have been assessed as suitable for the nominated occupation Agricultural Scientist. It records that Vetassess relied on his Master degree completed in 2010 at the University of Messina, Italy in the field of Biology and Ecology of Marine Coastal Environment.  However Vetassess also relied on his employment in Australia at the James Cook University in the period July 2014 to September 2016 while a PhD candidate. Vetassess calculated that the applicant had been employed at the appropriate skill level, closely related to the nominated occupation for 1.8 years, at the time of its assessment. Vetassess noted that it counts skilled employment within the last 10 years in the nominated occupation or a closely related occupation when undertaking the skills assessment.

24. The Tribunal notes the applicant continued to work at James Cook University after this assessment was completed, until December 2017.

25. The delegate was not satisfied the applicant’s employment at James Cook University as a PhD candidate met the criterion. She acknowledged that Vetassess considered the employment to meet their employment criteria for skills assessment purposes. However she formed the view that for the purposes of Schedule 6D, remuneration is for an applicant to be engaged in an occupation on a paid basis. She formed the view a person receiving minimal living allowances or scholarships designed to cover expenses would not be considered to be remunerated. She was therefore not satisfied that the applicant was employed in Australia in his nominated skilled occupation, or a closely related skilled occupation, for at least 12 months in the 10 years immediately before invitation to apply for the visa and awarded no points under this criterion.

26. The applicant’s representative provided the following submissions. She noted that employment is defined in r.2.26AC(6) for Schedule 6D to mean engaged in an occupation for remuneration for at least 20 hours a week. She noted that the delegate was concerned that the applicant’s claim of skilled employment as a PhD research at James Cook University was that he received minimal living allowance or scholarship designed to cover his expenses and not remuneration. She advised however that the applicant was paid a tax-free stipend of $26,653 per annum from August 2013 to August 2016, later extended to January 2017 and increased to $25,849 per annum. His international tuition fees were also paid by the scholarship which amounted to $32,000 per year. He also received an allowance for costs associated with the production of his PhD thesis. He also received various grants during his research conducted for his PhD and provided the particulars of those grants.

27. The representative noted that the Professional Employees Modern Award is a national award for professional scientists and under this award, effective from 1 July 2014, the annual wage for an Entry Level Scientist with a 3 year degree was $44,554 and the annual wage for scientist with a 4 or 5 year degree, for example a Masters, was $45,696. She noted that the applicant’s scholarship was $56,653 per annum, plus costs. He was also entitled to 4 weeks paid recreation leave per year and paid sick leave of up to 10 days within the tenure of the scholarship, an additional period of sick leave of up to 3 months for medically substantiated periods of illness and paid maternity leave of a maximum of 12 weeks. She explained that the PhD is not just a course of study; it is a program of supervised original research. While supervised, PhD candidates nevertheless conduct research just as any other scientific research scientist.

28. The representative provided evidence that in 2016 and 2017 the applicant published scientific papers in collaboration with senior scientists.

29. The representative noted that according to the Professional Employees Award, a professional scientist is a person qualified to carry out professional scientific duties. The award defines the professional scientific duties as duties carried out by a person in any employment for which academic qualifications are required. To be accepted in the PhD program candidates are required to hold at least a bachelor degree and must demonstrate the capacity to undertake research at doctoral level.

30. The representative also noted that when Australian universities are seeking to fill PhD scholarships they are advertised through employment websites such as SEEK. She submitted that this demonstrates the universities consider these opportunities to be employment opportunities. She provided examples of such advertisements.

31. The representative noted that the applicant’s scholarship contract is very similar to an employment contract, with similar entitlements under the Fair Work Act. The tasks and duties of a PhD candidate are almost identical to the tasks and duties of a scientist employed elsewhere in a professional capacity. She submitted that the applicant’s PhD candidature at James Cook University meets the definition of employed as set out in r.2.26AC(6), that is, engaged in an occupation for remuneration for at least 20 hours per week.

32. The Tribunal has considered the representative’s submissions and the delegate’s view regarding the applicant’s engagement at James Cook University while undertaking his PhD. The Tribunal finds it highly persuasive that Vetassess considers his engagement to be employment. It also finds his annual award of $56,653, and entitlement to paid recreation leave and sick leave and the requirement to attend full-time indicative of an employment arrangement. Having regard to the terms of agreement with the University it finds the requirement that he undertake research under the supervision of a senior researcher and publish scientific articles while engaged at James Cook University to be indicative of employment. The Tribunal is also persuaded by the submission that aspects of the scholarship contract are very similar to an employment contract, with similar entitlements under the Fair Work Act.

33. The Tribunal accepts that the Department’s policy suggests that a person receiving minimal living allowances or scholarships to cover living expenses would not be considered to be ‘remunerated’. However to the extent such an interpretation requires financial benefit, the Tribunal is of the view it may go beyond the ordinary meaning of remuneration. In any event, it appears the applicant’s entitlements under the agreement with James Cook University, in addition to living expenses, included tuition and leave entitlements and other scholarships are not minimal when compared to the annual wage for an Entry Level Scientist. The Tribunal is of the view the entitlements arising from the applicant’s agreement with James Cook University were ‘remuneration’.

34. On this basis the Tribunal finds the applicant was engaged in a skilled occupation during a specific period which totalled 36 months, as he was actively participating in or undertaking duties directly connected with carrying out the occupation concerned. The occupation of research scientist was the applicant’s nominated skilled occupation or a closely related skilled occupation. On the basis of Vetassess’ findings the Tribunal is satisfied the applicant held the qualification and/or experience nominated by the ANZSCO classification system for the occupation. Accordingly the Tribunal is satisfied the applicant was employed in Australia in the nominated skilled occupation or a closely related occupation from July 2014 to December 2017, for a period totalling at least 36 months in the 10 years immediately before the invitation to apply for the visa.

35. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

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

36. 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.

37. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10 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

38. 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.

39. The applicant has made no claims to have completed a professional year. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

40. 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.

41. The applicant has provided evidence that he completed his PhD awarded by James Cook University on 11 October 2017. Having considered the applicant’s evidence from James Cook University the Tribunal is satisfied, at the time of invitation to apply for the visa, the applicant had met the requirements for the award of a doctorate by an Australian educational institution.

42. Therefore, the applicant is entitled to 20 points under this part.

    Part 6D.7A – Specialist educational qualifications

43. 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.

44. Based on the material provided, the Tribunal is satisfied the applicant has met the requirements for the award of a doctoral degree which included at least 2 years of academic study at James Cook University, an Australian educational institution, in the field of science. Having regard to the relevant instrument, IMMI 16/076 Specification of Fields of Education, the Tribunal is satisfied the applicant’s study falls within the Broad Field of Education specified, Natural and Physical Sciences.

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

   Part 6D.8 – Australian study qualifications

2. 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.

3. The applicant has provided evidence that he completed the PhD at James Cook University on 11 October 2017. He commenced the course in July 2013 which was undertaken on a full-time basis.  Having regard to the CRICOS records the Tribunal is satisfied the course duration was 208 weeks and the tuition was in English. Accordingly the Tribunal is satisfied the applicant satisfied the Australian study requirement as he has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that met the requirements of r.1.15F.

4. 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

5. 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.

6. There is no evidence before the Tribunal to indicate that the applicant made claims that he is the holder of a qualification awarded or accredited by a body specified by the Minister at the time of invitation to apply for the visa.

7. Therefore, the applicant is entitled to no points under this part.

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

8. 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.

9. The applicant has provided evidence that he completed his PhD at James Cook University, Townsville, postcode 4814. Having regard to the relevant instrument, Migration (LIN 19/217: Regional Areas) Instrument 2019, the Tribunal is satisfied the postcode is specified in the applicant undertook study in a designated regional area.

10. The Tribunal is also satisfied the applicant has provided a tenancy agreement and bank statements indicating that he resided at Kirwan, postcode 4817 while undertaking the study. This is also a postcode specified in the instrument. Accordingly the Tribunal is satisfied the applicant lived whilst undertaking the study in a designated regional area.

11. There is no evidence to suggest that the study undertaken was distance education.

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

    Part 6D.11 – Partner qualifications

13. 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.

14. The applicant has provided evidence that he has a spouse, the second named applicant, a citizen of Italy. In the visa application he indicated that she had not undertaken an English language test within the 36 months immediately before the date of the invitation to apply for the visa. He subsequently provided evidence to the Department that the second named applicant had undertaken and IELTS test on 20 January 2018, after the invitation to apply for the visa and scored 5.5 for listening, 4.5 for reading, 5.5 for writing, 6.5 for speaking and an overall band score of 5.5.

15. Having regard to the relevant instrument, IMMI 15/005, the Tribunal is not satisfied the applicant’s spouse, the second named applicant, achieved the specified scores. It also notes that the test was taken after the date of invitation to apply for the visa. Accordingly she did not have competent English at the time of the applicant’s invitation to apply for the visa.

16. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

17. 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

18. 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

19. 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  0 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  10 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  20 points

    6D.7A – Specialist educational  10 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  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - DRA nomination or sponsorship qualifications         0 points

    Total points  75 points

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

21. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument LIN 19/210. 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?

22. The current instrument specifies that the pass mark for visa applicants in the applicant’s circumstances is 60 points. Accordingly the applicant has achieved the qualifying score applying the law in force at time of Tribunal’s assessment.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

23. 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 delegate records that the written invitation given to the applicant dated 22 November 2017 recorded an invite 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.

    Conclusion

24. 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

25. 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.

    Denise Connolly
    Member