Maliakkal (Migration)

[2023] AATA 3972

Maliakkal (Migration) [2023] AATA 3972 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Divya Maliakkal
Mr Abilash Maliakkal
Master Alvis Maliakkal
Master Sachin Maliakkal
Miss Clara Maliakkal

CASE NUMBER:  2112263

HOME AFFAIRS REFERENCE(S):          BCC2021/1567427

MEMBER:Wan Shum

DATE:22 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 22 August 2023 at 3:11pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurses (Child and Family Health) – ‘points test’ criterion – LIN 19/210 – Australian study qualifications – study not yet completed at time of invitation – qualifying score achieved – invitation score not achieved – decision under review affirmed

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

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 27 August 2021 to refuse to grant the applicants Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 26 July 2021 and applied for the visa on 12 August 2021. 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 (Cth) (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 appeared before the Tribunal by videoconference on 22 August 2023 to give evidence.

4. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

6. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (reg 2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s 94 of the Act), which is set by the Minister from time to time under s 96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss 93 and 350 of the Act).

7. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (reg 1.15I).

8. The relevant instrument for this purpose is Legislative Instrument LIN 19/051. In the present case, the applicant nominated the occupation of Registered Nurses (Child and Family Health) which is an occupation specified under the Medium and Long-term Strategic Skills List.

9. The applicable pass mark at the time of the delegate’s decision, which remains so now, is 65 points (refer LIN 19/210) and the invite score was 90 points.

   The qualifying score (applying the law in force at the time of the delegate’s assessment)

   Part 6D.1 – Age qualifications

10. 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.

11. At the time of invitation, the applicant was aged 35. 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. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, she had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).

14. The applicant provided a copy of the statement of results for the Occupational English Test (OET) which had a test date of 8 March 2020, which is before she was invited to apply, and indicates that the applicant obtained 370 (B) in listening, 390 (B) in reading, 400 (B) in speaking and 390 (B) in writing.

15. The delegate was unable to verify these results and the Tribunal discussed this with the applicant at the hearing. However, the Tribunal indicated that unless the points under the remaining parts of Schedule 6D would be such that she would meet the invitation points of 90 if she was assessed as having proficient English (as defined in r.1.15F) and was entitled to 10 points, it would not undertake the verification. In these circumstances, for the purposes of assessing the qualifying score, the Tribunal has not undertaken verification but has allocated 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

16. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.

17. On the visa application form, the applicant claimed to have been employed for at least 60 months in the nominated occupation or closely related skilled occupation in the past 10 years overseas and completed the section of the form as follows:

    Position: Registered Nurse

    Employer name: Waikato Hospital

    Country: New Zealand

    Date from: 04 Jun 2013

    Date to: 02 Feb 2020

18. The applicant has provided a statement from that employer setting out her record of service which reflects that she worked as a Registered Nurse from 4 June 2013 to 2 February 2020, for at least 32 hours per week apart from two periods of ‘Parental Leave’ from 14 March 2016 to 9 October 2016 and 9 October 2017 to 11 March 2018. Having considered the evidence of employment provided, the Tribunal accepts that the applicant was employed for the claimed period in her nominated skilled occupation, which means that she was employed in New Zealand as a Registered Nurse for more than 60 months but less than 96 months in the 10 years immediately before the invitation for this visa.

19. This means that she was employed outside Australia in her nominated occupation for at least 60 months in the 10 years immediately before the invitation for this visa and, subject to consideration of Part 6D.5, the applicant is entitled to 10 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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

21. On the visa application form, the applicant claimed to have been employed for at least 12 months in the nominated occupation or closely related skilled occupation in the past 10 years in Australia.

22. The section of the form was completed as follows:

    Position:         Registered Nurse

    Employer name: Shoalhaven District Memorial Hospital

    Country:          AUSTRALIA

    Date from:      06 Apr 2020

    Description of duties:     caring for Paediatric patients

23. In response to the questions of whether the applicant is claiming points for this employment and whether this employment is related to the nominated position, the applicant responded “yes”. She claimed to have been employed in Australia for 1 year in the past 10 years.

24. In considering the evidence provided, the Tribunal accepts that she was employed as a Registered Nurse by Shoalhaven District Memorial Hospital since 6 April 2020, which was more than 12 months as she invited to apply on 26 July 2021. The Tribunal therefore finds that she was employed in Australia in her nominated occupation for at least 12 months in the 10 years immediately before the invitation for this visa and, 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

25. 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.

26. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15. 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

27. Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the immediately preceding 48 months. The relevant instrument (LIN 18/170) specifies that the Professional Year Program provided by: the Australian Computer Society which is available to information technology graduates; (b) Chartered Accountants Australia and New Zealand, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates; by Engineers Australia which is available to engineering graduates.

28. The applicant indicated that she did not complete a professional year and there is no evidence that she had. Therefore, she is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

29. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in reg 2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

30. The applicant completed a four year “Basic B.Sc Nursing Course” from Florence College of Nursing, which is affiliated to Rajiv Gandhi University of Health Sciences, Karnataka, India which the applicant confirmed is a Bachelor degre. According to Country Education Profiles which is maintained by the Department of Education, the University is a Level 2 institution and a Bachelor Degree of at least 4 years is comparable to an Australian Bachelor degree. The applicant confirmed that she had also undertaken 1 year of study in New Zealand which was a conversion course in Nursing and was enrolled in a Master of Business Administration in Health Services Management course in Australia at the time of invitation. She confirmed that she had completed that study in late 2021.

31. Having regard to recognition of the qualification by the Australian Nursing & Midwifery Accreditation Council (ANMAC), which is the relevant assessing authority for her nominated occupation, the Tribunal finds at the time of invitation, the highest level of study the applicant had met the requirements and been awarded the qualification was a Bachelor degree. This degree was awarded by another educational institution, not an Australian one, that is of a recognised standard. She is therefore entitled to 15 points under this Part.

    Part 6D.8 – Australian study qualifications

32. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in reg 1.15F of the Regulations. To meet the 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.

33. The applicant did not meet this requirement at the time of invitation as she had not yet completed her study in Australia, she is not entitled to points under this part.

    Part 6D.9 – Credentialled community language qualifications

34. 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.

35. The applicant is not claiming, and she is not entitled to, points under this Part.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

36. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in reg 1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant has provided evidence of having completed study at University of Tasmania, however the academic transcript as at 13 September 2021 reflects that the course was a Bachelor of Nursing with Professional Honours (Specialty) and consisted of distance learning. The Tribunal finds that she had not met the Australian study requirement as it was distance learning and incomplete so she is not entitled to points under this part.

    Part 6D.11 – Partner qualifications

37. Ten points may be awarded under this Part if the applicant does not have a spouse or de facto partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

38. The applicant has a spouse who is also an applicant for the same subclass of visa and is a New Zealand citizen. This means that he ‘competent English’ as defined. However, he had not nominated a skilled occupation specified at that time under reg 1.15I(1)(a) at time of the applicant’s invitation to apply so the maximum points the applicant is entitled to under this part is 5 points.

    Part 6D.12 – State or Territory nomination qualifications

39. 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

40. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa or a Subclass 491 (Skilled Work Regional (Provisional)) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

    Conclusion on points

41. Based on the above assessment and counting the English language test results as meeting the definition of proficient English, 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  10 points

    6D.3 - Overseas employment experience  10 points

    6D.4 - Australian employment experience  5 points

    6D.5 - Aggregated employment  NA

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in designated regional area qualification        0 points

    6D.11 - Partner qualifications  5 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination or

    
    

    sponsorship qualifications   0 points

    Total points  70 points

42. Applying the law in force at the time of the delegate’s assessment, the applicant’s assessed score under the points system is therefore 70 points. There were no relevant changes to the law in force as of the Tribunal’s assessment which would change the assessed score.

43. At the time of the delegate’s assessment (27 August 2021) and the Tribunal’s assessment, the pass mark was 65 points. This means that the applicant has achieved the qualifying score to pass the points test.

44. However, 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 stated a score of 90 points. As the applicant’s score of 70 is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl 189.224. It appeared that the applicant had mistakenly believed that her study in Australia could be considered even though it was not yet completed at the time of invitation. While the applicant has since completed the study and has worked as a registered nurse in Australia, the relevant point in time is at the time of invitation and the Tribunal does not have any power or discretion to find that this criterion is met.

45. The Tribunal also considered whether her application for a Subclass 189 visa could be assessed under the New Zealand stream. However, as she had nominated the points test stream when the application was made, the application cannot be considered under the New Zealand stream (refer item 1137(4G)(b) of Schedule 1 to the Regulations).

46. Given that cl 189.224 is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

47. The Tribunal affirms the decision not to grant the visas.

    Wan Shum
    Member