Musngi (Migration)

[2022] AATA 1265

Musngi (Migration) [2022] AATA 1265 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dennis Gil Musngi

CASE NUMBER:  1912731

HOME AFFAIRS REFERENCE(S):          BCC2019/362952

MEMBER:Antonio Dronjic

DATE:16 March 2022

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 16 March 2022 at 11:43am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurse (Critical Care and Emergency) – ‘points test’ criterion – Australian Study – law in force at time of the Tribunal’s assessment – F2019L00578 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350, 360
Migration Regulations 1994 (Cth), rr 1.15F, 1.15I, 2.26AC; Schedule 2, cls 189.224; Schedule 6D, Part 6D.8

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 15 May 2019 to refuse to grant the applicant a visa 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 applicant was invited to apply for the visa on 11 December 2018 and applied for the visa on 6 February 2019. 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 delegate concluded that the applicant was entitled to 65 points and not 70 points as stated in the invitation to apply for this visa because the applicant’s claim for 5 points for Australian study in accordance with Part 6D.8 of Schedule 6D to the Regulations was not accepted by the delegate.

4. The applicant sought review of the delegate’s decision on 22 May 2019 and with his applications submitted a copy of the primary decision record together with the supporting documentary evidence listed in Attachment A to this decision record.

5. On 15 December 2021, the Tribunal wrote the following letter to the applicant:

   To be successful with this review application, your points score must not be less than one stated in the invitation to apply for a Subclass 189 visa. This is prescribed by cl.189.224(1). This is regardless if you achieve a qualifying score or not (in this case qualifying score was 65 and you claimed 70 points in the invitation to apply).

   We note your statement of 21 May 2019 in which you conceded your mistake in claiming 5 points on account of your Australian Study (as per Part 6D.8 of Schedule 6D).

   Please note that additional points may be awarded if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident (item 6D112). This item was inserted by F2019L00578 on 16 November 2019 and it applies to all applications not finally determined by that date as no transitional arrangements are specified in F2019L00578.

   Please advise of your current marital/de facto status.

6. On 29 December 2021, the applicant’s representative submitted additional documentary evidence in support of the review application.  The list of documents submitted to the Tribunal is attached to this decision record as Attachment B. The applicant informed the Tribunal that he is not married and, inter alia, submitted a certificate from the Philippine Statistic Authority dated 27 December 2021, confirming that the applicant is not married.

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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).

10. 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). In the present case, the applicant nominated the occupation of Registered Nurse (Critical Care and Emergency).

    Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

    Part 6D.1 – Age qualifications

11. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

12. At the time of invitation, the applicant was aged not less than 25 years and under 33 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

13. Points are available under this Part based on the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

14. At the time of invitation to apply for the visa, the applicant submitted OET English test results number 104-742-861, dated 9 July 2017, evidencing the following results:

    Listening score B
    Reading score B
    Written score B
    Speaking score B
    Language ability Proficient

15. Following assessment of the information provided with the visa application the Tribunal is satisfied that the applicant has proficient English as defined in reg 1.15D.

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

    Part 6D.3 – Overseas employment experience qualifications

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

18. Based on the evidence before it, including the Certification of Service letter from AUF Medical Centre; Payslip summary for second half of February 2018; Payslip summary for first half of January 2016; Payment/Tax Withheld for 2017; and the applicant’s Resume, the Tribunal is satisfied that, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in his nominated skilled occupation, or a closely related skilled occupation, for at least 60 months in the 10 years immediately before the invitation for this visa.

19. Accordingly, 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. The applicant did not claim to have any Australian employment experience and is not entitled to points under this Part.

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

22. 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 Parts 6D.3 or 6D.4.

23. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10. As this is not more than 20 points, the applicant is not entitled to points under this Part.

    Part 6D.6 – Australian professional year qualifications

24. 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.

25. The applicant indicated that he did not complete a professional year. Therefore, he is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

26. 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.

27. The applicant has provided evidence of being awarded a bachelor’s degree in Science, Business or Technology (Nursing). This degree was completed on 21 March 2009 at Angeles University Foundation at the Philippines. Having considered the matters set out in reg 2.26AC(5), the Tribunal is satisfied that this overseas course is of a recognised standard. The Tribunal noted that the Australian Nursing and Midwifery Accreditation Council (ANMAC) recognised the applicant’s educational qualifications as being commensurate with at least an Australian bachelor’s degree for the purposes of awarding points for qualifications under the General Skilled Migration points test.

    Part 6D.7A – Specialist educational qualifications

28. 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 reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a master’s degree by research, or a doctoral degree, which included at least two academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

29. The applicant did not claim, nor did he provide evidence of meeting the specialist education qualification requirement specified under Part 6D.7A. Accordingly, no points were awarded under this criterion.

    Part 6D.8 – Australian study qualifications

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 reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed one 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 two academic years of study.

31. The applicant conceded in his letter of 21 May 2019 submitted to the Tribunal that he mistakenly claimed 5 points for completing a three months Bridging Program for Initial Registration for Overseas Nurses. Accordingly, no points were awarded under this criterion.

    Part 6D.9 – Credentialled community language qualifications

32. 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.

33. The applicant is not claiming, and he is not entitled to, points under this Part.

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

34. 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), the location of the campus(es) at which the study was undertaken was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.

35. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this Part.

    Part 6D.11 – Partner qualifications

36. 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 (item 6D111).

37. 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 (item 6D113).

38. The applicant made no claims and provided no evidence that he qualifies for points under this Part. Accordingly, the delegate awarded no 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, 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  10 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  0 points

    6D.9 – Credentialled community language  0 points

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

    6D.11 – Partner qualifications  0 points

    6D.12 – State or Territory nomination  0 points

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

    Total points  65 points

42. The applicant’s assessed score under the points system is therefore 65 points.

43. 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 qualifying score applying the law in force at time of the Tribunal’s assessment?

44. As noted above, from 16 November 2019 and pursuant to item 6D112, the applicant is entitled to 10 points even if he does not have a spouse. This item was inserted by F2019L00578 on 16 November 2019, and it applies to all applications not finally determined by that date as no transitional arrangements are specified in F2019L00578.

45. The applicant submitted evidence to the Tribunal that he is not married. In the visa application form he stated that he was never married. Accordingly, the applicant is entitled to 10 points under Part 6D.11 (item 6D112).

46. Accordingly, the applicant’s qualifying score under the points system, applying the law in force at the time of the Tribunal’s assessment, is 75 points.

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

47. 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. Based on the points assessment above, the Tribunal finds that the applicant’s score is not less than the score stated in the invitation to apply for the visa.

48. 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

49. 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.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    1.On 22 May 2019, the applicant provided the Tribunal with the following documentation:

    ·Submissions by the applicant dated 21 May 2019

    ·Applicant’s Philippines driver licence

    ·Applicant’s multi-purpose clearance (Philippines)

    ·Applicant’s payslips for the periods January 2016 and February 2018

    ·Reference letter dated 20 April 2018

    ·Certificate of Completion (Initial registration for overseas nurses)

    ·Applicant’s birth certificate

    ·Australian police clearance

    ·Applicant’s OET results

    ·Applicant’s professional identity card (Philippines)

    ·Certificate of compensation Payment/Tax withheld (Philippines)

    ·Skills assessment (ANMAC) issued 5 November 2018

    Attachment B: Document List

    2.On 29 December 2021, the applicant’s representative provided the Tribunal with the following documentation:

    ·Letter from Philippines Statistics Authority dated 27 December 2021

    ·Letter from Colac Area Health dated 23 December 2021 with position description attached