Ndhlema Kakunka (Migration)
[2023] AATA 2896
•28 August 2023
Ndhlema Kakunka (Migration) [2023] AATA 2896 (28 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Masozi Brenda Ndhlema Kakunka
Miss Lushomo Joy Kakunka
Miss Lumuno Faith Kakunka
Miss Walusungu Christina Kakunka
Miss Natasha Thokoza Ngoma
Mr Alick Perry KakunkaREPRESENTATIVE: Mr Ray Turner
CASE NUMBER: 2112807
HOME AFFAIRS REFERENCE(S): BCC2020/1600473
MEMBER:Karen McNamara
DATE:28 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.
Statement made on 28 August 2023 at 3:49pm
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – occupation of Accountant (General) – professional year course with no expiry date – recently attained English language competency – timing of language test – referral for Ministerial Intervention – residence and work in a designated regional area – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 55, 65, 93, 94, 96, 350, 351, 359, 360
Migration Regulations 1994, Schedule 2, cls 189.222, 491.216, 491.311; Schedule 6D; rr 1.15, 2.26CASES
Kumar v MIBP [2014] FCA 1336
MIAC v Berenguel (2010) 264 ALR 417
Milanes v MIBP [2015] FCA 1105
Thapa v MICMSMA [2021] FCCA 686STATEMENT 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 6 September 2021, to refuse to grant the applicants 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.
The first named applicant Ms Masozi Brenda Ndhlema Kakunka (the applicant) was invited to apply for the visa on 12 May 2020, subsequently lodging an application with the Department on 22 May 2020. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa are set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The primary decision record shows that on 6 September 2021, the delegate refused to grant the visas because Ms Masozi Brenda Ndhlema Kakunka did not satisfy the ‘points test’ criterion in cl 491.216. Having assessed Ms Kakunka’s score to be 65 points, the delegate noted that the assessed score of 65 points is less than the score of 70 as specified in the invitation letter. As such, the delegate found Ms Kakunka does not meet cl 491.216 (1) of Schedule 2 to the Regulations, hence not satisfying the requirements of cl 491.216. Essentially, this was due to the delegate finding that the applicant completed a professional year in Australia outside the 48-month timeframe and therefore did not award the 5 points claimed in this category. Additionally, the delegate found that the applicant’s claims under partner qualifications failed to support the applicant’s spouse (Mr Alick Perry Kakunka) demonstrated he had competent English at the time of invitation to apply for the visa. Hence no points were awarded for this part.
The delegate also found that the secondary applicants Miss Lushomo Joy Kakunka, Miss Malumbo Joanna Kakunka, Miss Lumuno Faith Kakunka, Miss Walusungu Christina Kakunka, Miss Natasha Thokoza Ngoma and Mr Alick Perry Kakunka, could not be granted a Subclass 491 - Skilled Work Regional (Provisional) visa as they did not meet the secondary visa criterion (cl.491.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 491 visa.
The applicants lodged an application for review with the Tribunal on 22 September 2021. The review application was accompanied by the Department covering notification letter dated 6 September 2021.
In regard to secondary applicant, Miss Malumbo Joanna Kakunka, The Tribunal notes that subsequent to lodging her application for review as a secondary applicant, Miss Malumbo Joanna Kakunka has withdrawn her application for review and therefore is no longer a secondary applicant in this matter.
On 27 July 2023, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 23 August 2023 at 1:30 pm. At the request of the representative, the hearing was subsequently rescheduled to 25 August 2023 at 10:00 am.
On 3 August 2023, the Tribunal wrote to the applicants pursuant to s.359A of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.
The information related to information before the Tribunal (being Department records) showing that on 6 September 2021, the Department refused their application for a Skilled Work Regional (Provisional) (class PS) Skilled Work Regional (Provisional) (subclass 491) visa, as the first named applicant did not meet the requirements of cl.491.216(1). The delegate found the assessed score was lower than the invitation score.
Additionally, the Tribunal noted that a review of Tribunal and Department records show that since the lodgement of the application for review on 22 September 2021, the applicants had not provided verifiable evidence to address the criteria of cl.491.216 as claimed in their application for a Skilled Work Regional (Provisional) (class PS) Skilled Work Regional (Provisional) (subclass 491) visa.
The Tribunal’s letter of 3 August 2023 noted that this information is relevant because cl.491.216 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. If the Tribunal relies on this information, it may find that the application does not satisfy the requirements of cl.491.216 and consequently the decision under review would be affirmed.
On 17 August 2023, the representative on behalf of the applicants provided the following to the Tribunal;
·Submission by representative 15 August 2023
·Thapa v MICMSMA [2021] FCCA 686
·Email confirming Mr Alick Perry Kakunka approval for registration to work with vulnerable people 17 April 2020
·Confirmation of Employment (Mr Alick Perry Kakunka) 29 June 2023
·Application for Assessed Disclosure (Department of State Growth) 29 April 2021
·Confirmation of Employment (Ms Brenda Ndhlema Kakunka) 13 July 2023
·Certificate IV in logistics (Mr Perry Alick Kakunka)
·Certificate in Theology (Mr Perry Alick Kakunka)
·Single subject Diploma (Mr Perry Alick Kakunka) Business Management & Administration
·Diploma (Mr Perry Alick Kakunka) Bread of Life School of Ministry
·Certificate of Ordination as a Pastor (Mr Perry Alick Kakunka)
·Diploma of Business Administration (Mr Perry Alick Kakunka)
·Employment reference (Mr Perry Alick Kakunka) 14 April 2022
·Local Minister’s Certificate (Mr Perry Alick Kakunka) 5 May 2021
·Email from Mr Perry Alick Kakunka re: English requirement for studies undertaken dated 8 August 2023
On 25 August 2023, Mrs Masozi Brenda Ndhlema Kakunka, appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Alick Perry Kakunka.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 (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).
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). The relevant instrument for this purpose is LIN 19/051. In the present case, the applicant nominated the occupation of Accountant (General) ANZSCO 221111.
Having regard to the provisions in s 350 of the Act, the Tribunal has considered the applicant’s score as assessed by applying the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision. The Tribunal has summarised in the table below at paragraph [86], its comparative assessment of the applicant’s score as set out in the application to the Department dated 22 May 2020, the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision, to enable it to determine which is more favourable for the applicant as required by s 350 of the Act.
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 43 years. This is confirmed by the copy of Ms Kakunka’s passport biodata page as provided to the Tribunal. Therefore, the applicant is entitled to 15 points under this part.
There have been no changes to the law in regard to this qualification since the time of the delegate’s decision. As at the time of this decision, the applicant continues to be entitled to 15 points.
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. The applicant completed a PTE Academic on 27 April 2019. IMMI 15/005 specifies a Pearson Test of English Academic (PTE Academic) score of at least 65 in each of the 4 test categories, listening, reading, writing and speaking.
The applicant claimed 10 points on the basis of having proficient English at the time of invitation to apply for the visa. In support of her claim, the applicant provided evidence of undertaking an English test (PTE Academic) on 27 April 2019 attaining 74 for Listening, 82 for Reading, 76 for Writing, 90 for Speaking and Overall band score of 79.
The applicant therefore is assessed as having proficient English as defined in reg 1.15D and therefore entitled to 10 points under this Part, both at the time of the delegate’s decision and as at the time of this decision.
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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant has made no claims or provided evidence to support that she was employed outside Australia in a skilled occupation for a least 36 months in the 10 years immediately before her invitation to apply for a Subclass 491 visa.
Therefore, subject to consideration of Part 6D.5 below, the applicant is entitled to no points under this part, both at the time of the delegate’s assessment and as at the time of this decision.
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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant claimed 5 points on the basis of having been employed in Australia in her nominated skilled occupation; or a closely related skilled occupation for a period totalling at least 12 months in the 10 years, immediately before the date of the invitation to apply for the visa.
The applicant stated in her application form that she was employed by Garde Services Pty Ltd as an Assistant Accountant from 1 July 2018 to 1 July 2019. This is supported in a reference dated 6 February 2020 by David Garde (Director, Garde Services Pty Ltd).
The Tribunal therefore is satisfied, the applicant has provided sufficient evidence to demonstrate that she was employed in her nominated skilled occupation (Accountant (General)) or a closely related skilled occupation for at least 12 months in the 10 years immediately before she received her invitation to apply for this visa.
Therefore, subject to consideration of Part 6D.5 below, the applicant is entitled to 5 points under this part, both at the time of the delegate’s assessment and as at the time of this decision.
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 awarded to the applicant 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 Part 6D.5, both at the time of the delegate’s assessment and as at the time of this decision.
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 a period totalling at least 12 months in the immediately preceding 48 months.
The applicant claimed 5 points on the basis of having completed a professional year in Australia. The delegate however was not satisfied that the applicant completed a professional year in Australia in the nominated occupation or a closely related skilled occupation in the 48 months immediately before the invitation to apply for the visa.
Information before the Tribunal shows in support of the applicant’s claim for completion of a professional year in Australian, the applicant provided to the Department a certificate of attainment issued by Performance Education dated 16 October 2015. On 22 April 2021 the Department advised the applicant that the course undertaken in support of the applicant’s claim for the Australian professional year qualification, was completed on 16 October 2015, which is outside the 48-month timeframe for the awarding of points under this category and therefore 5 points cannot be awarded. This resulted in the applicant being awarded a total score of 65 which was lower than the qualifying score as per the invitation of 70.
In submissions before the Tribunal, the representative requested the Tribunal to regard Thapa v MICMSMA [2021] FCCA 686, at [28] – [30][1] submitting ‘… that Ms. Kakunka's course completed with Performance Education should count as a professional year in Australia in her nominated occupation of accountant as her professional year has no expiry date. There is no logical reasoning behind a time limitation to the professional year as the professional year contributed to Ms. Kakunka's knowledge of accounting and her overall professional work experience in the area of accounting. The knowledge the professional year provides does not have an expiry date…’[2]
[1] In Thapa v MICMSMA [2021] FCCA 686, the Court held at [28]-[30] that the words ‘at the time of invitation to apply for the visa’ in cl 189.222(1) meant the period within which the invitation was valid or open, not the date the invitation to apply was made or given to an applicant. As the invitation expressed that it was valid for 60 days, it was open for the applicant to submit a skills assessment that had only been obtained during that period, even though it had not been in existence at the date the invitation was issued. The Court’s reasoning would appear equally applicable to the similarly worded skills assessment requirement for Subclass 491 i.e. cl 491.214.
[2] Prepared and transcribed as submitted by the representative at para 8
The representative refers to Schedule 6D, Part 6D.6 regarding the Australian Professional year qualifications, noting that the wording of the regulation requires that at the time of the invitation to apply for the visa, the applicant had completed a professional year in Australia in a closely related skilled occupation for a period totalling at least 12 months in the 48 months immediately before that time.
The representative submits ‘ that this regulation is plainly unfair as it fails to take into consideration that a professional year completed in 2016 for Ms.Kakunka’s skilled occupation does not have an expiry date, regardless of the fact that it was completed more than 48 months immediately before that time.’ [3]
[3] Prepared and transcribed as submitted by the representative at para 12
The representative refers to Court’s findings in Thapa v MICMSMA [2021] FCCA 686, noting at [28]-[30] that the ‘unfairness identified by the Federal Circuit Court of Australia is the same type of unfairness that Ms. Kakunka faces before this Tribunal as she has a professional year that does not have an expiry date. The provider of this course advised Ms. Kakunka that there is no expiry date to her course, however the Department has chosen to refuse her application on the basis that she has not completed her professional year more than 48 months before the invitation to apply.[4]’
[4] Prepared and transcribed as submitted by the representative at para 14
At the hearing the applicant told the Tribunal that because her professional year course has no expiry date, it should count as a professional year in Australia hence satisfying the professional year requirements for the purpose of her application.
The Tribunal told the applicant that there is no dispute in regard to the course not having an expiry date, however the issue for consideration before the Tribunal is whether the applicant completed the course in the 48 months immediately before the time she was invited to apply for the visa. In the circumstances of this case, the applicant completed the course on 16 October 2015 which is outside of the 48-month period prior to the invitation date.
The Tribunal has carefully considered the submissions presented by the representative on behalf of the applicant having consideration to Thapa and the applicant’s claim that the course undertaken as a professional year in Australia has no expiry date. In undertaking its consideration of the evidence and the submissions before it, the Tribunal is mindful of the language of Part 6D.6 which is clear ‘At the time of invitation to apply for the visa, the applicant had completed a professional year in Australia…for a period totalling at least 12 months in the 48 months immediately before that time (being the time of invitation). [emphasis added by Tribunal].
In Thapa v MICMSMA, the Court held that the words ‘at the time of invitation to apply’ in cl.189.222(1) meant the period within which the invitation was valid or open, not the date the invitation itself was made or given to the applicant. As the invitation to apply was expressed as being valid or open for 60 days, it was open for the applicant to submit a skills assessment that had only been obtained during that period, even though it had not been in existence on the date the invitation was issued.
Having afforded consideration to Thapa and the submissions before it, it is the Tribunal’s view that the language of Part 6D.6 can be distinguished from that considered by the Courts in Thapa in that Thapa considered the time of application and that the skills assessment came into existence during the invitation period. In this case the applicant seeks to rely on completion of a course which has no expiry date, hence claiming the 48-month requisite period is not applicable.
The Tribunal therefore turns its mind to whether the applicant, at the time of invitation to apply for the visa completed a professional year in Australia in her nominated skilled occupation; or a closely related skilled occupation; for a period totalling at least 12 months in the 48 months immediately before that time. The Tribunal finds that the applicant undertook and completed a professional year in Australia on 16 October 2015. The applicant was invited to apply for the visa on 12 May 2020. The expiry date for application was 11 July 2020.[5]
[5] As per the Courts finding in Thapa, the validity period within which the invitation was valid or open for the applicant to submit supporting evidence.
The requirements of Part 6D.6 of Schedule 6D to the Migration Regulations clearly specify that at the time of invitation to apply for the visa, the applicant completed a professional year in Australia for a period totalling at least 12 months in the 48 months immediately before that time. In this case the applicant, regardless of the course having no expiry date, completed the course outside of the 48-month requisite time frame.
Therefore, the Tribunal finds that the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.
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 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.
In support of her claim of Educational Qualifications, the applicant provided evidence of completing a Bachelor of Accounting degree from Universal Business School, Sydney awarded on 16 September 2013.
The evidence before the Tribunal confirms that the applicant has met the requirements for the award of at least a bachelor degree by an Australian educational institution.
Therefore, the applicant is entitled to 15 points under this part, both at the time of the delegate’s assessment and as at the time of this decision.
Part 6D.7A – Specialist educational qualifications
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 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.
The applicant has made no claims and provided no evidence of meeting the specialist educational qualification requirement specified in Part 6D.7A at the time of the invitation to apply. Therefore, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.
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 reg 1.15F of the Regulations. To meet the Australian 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.
The applicant completed a Bachelor of Accounting from Universal Business School Sydney on 22 June 2013 subsequently awarded on 16 September 2013. Having considered the course and its requirements, the Tribunal is satisfied that the applicant has completed a degree qualification for award by an Australian educational institution as a result of a course or courses that met the requirements of regulation 1.15F.
Accordingly, as the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part, both at the time of the delegate’s assessment and as at the time of this decision.
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.
The applicant has made no claims and provided no evidence that she was the holder of a qualification in a particular language awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa. Accordingly, she is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.
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 reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.
The applicant has made no claims and provided no evidence that she met the study in a designated regional area qualification. Therefore, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.
Part 6D.11 – Partner qualifications
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.
Information before the Tribunal shows that following the Department’s request on 22 April 2022, inviting the applicant to provide further evidence in regard to meeting her claim of completing a professional year in Australia (as discussed previously in this decision), the applicant sought to claim 5 points on the basis of satisfying the partner qualifications.
On 19 May 2021, the applicant provided to the Department, a Pearson-PTE Academic Score Report completed on 14 May 2021 by her spouse and secondary applicant to this application, Mr Alick Perry Kakunka. The delegate however was not satisfied that the applicant met points for this criterion as her spouse was unable to demonstrate competent English prior to the time of invitation. Accordingly, no points were awarded under this criterion.
In submissions before the Tribunal, the representative submits ‘that Mr. Kakunka's English should have been assessed as competent English. Mr. Kakunka has completed a number of courses, diplomas and certificates that were taught in English and he was required to have competent English to pass these courses. I submit that if Mr. Kakunka had competent English on 14 May 2021 when he provided a Pearson - PTE Academic Score, then Mr. Kakunka would have had competent English prior to the time of invitation which is 12 May 2020.’ [6]
[6] Prepared and transcribed as submitted by the representative at para 15
The representative refers to the remarks by the High Court in the case, Berenguel v Minister for Immigration and Citizenship [2010] HCA – ‘[26] Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose’.[7]
[7] Prepared and transcribed as submitted by the representative at para 16
The representative submits ‘that the above remarks made by the High Court in Berenguel apply to Mr. Kakunka's situation as the Department should have considered up-to-date information regarding Mr. Kakunka's Pearson - PTE academic score in 2021 which showed his competent English and this would be strong evidence to support that Mr. Kakunka had competent English prior to the time of invitation in 2020.’[8]
[8] Prepared and transcribed as submitted by the representative at para 17
Items 6D113(c) (as relevant in this matter) requires consideration of whether, at the time of invitation to apply for the visa, the spouse or de facto partner had competent English.
Competent English is defined in reg 1.15C. For Subclass 491, a person has competent English if:
· the person undertook a language test, specified in the relevant instrument; and
· the person is an applicant for a visa; and
· for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under the Regulations, in writing, to apply for the visa - the test was conducted in the 3 years immediately before the date of the invitation; and
· the person achieved a score specified in the instrument.
or alternatively:
· the person holds a passport of a type specified in the relevant instrument.
The relevant written instrument specifying the language tests, scores and passports for the purpose of reg 1.15C is IMMI 15/005.
The Tribunal has carefully considered the submissions and evidence before it, noting the representative seeks to rely upon the Courts findings in Berenguel in so far as consideration be afforded to Mr Kakunka’s PTE test undertaken on 14 May 2021. The Tribunal additionally notes the evidence before it attesting to Mr Kakunka’s secondary studies where tuition was delivered in English.
Whilst the representative seeks the Tribunal’s consideration of Mr Kakunka’s secondary education as ‘compelling evidence that he had competent English prior to the time of invitation’, the Tribunal notes that for the purpose of the 491-visa class and the assessment of competent English, the applicable instrument is IMMI 15/005. IMMI 15/005 does not specify exempt classes of persons. The only exemption under IMMI 15/005 is a person who holds a passport of a type specified under IMMI 15/005. For reg 1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
Exemptions to persons who have completed a minimum of five years of full time study in a secondary and/or higher education institution where all of the tuition was delivered in English, is not applicable to this matter.
The Tribunal is satisfied that Mr Kakunka holds a passport issued by the Republic of Zambia. He therefore does not hold a passport specified in IMMI 15/005, and thus must demonstrate that he has obtained the required scores in a specified English test undertaken in the three years immediately before the date of the invitation. Relevant to this matter three years immediately before 12 May 2020 to 11 July 2020.
Having consideration to the representative’s reliance on the Courts findings in Berenguel, under the current definitions, an English language proficiency test undertaken after the date of application cannot be accepted for the purposes of the Schedule 2 criteria and applicable points test provisions for General Skilled Migration (GSM) applications.[9] For all relevant GSM applications, except for Subclass 485, the English language proficiency test must be conducted in the 3 years ‘immediately before the day on which the application is made’ or (as applicable in this case) the day on which the Minister invited the person to apply for the visa.
[9] See Kumar v MIBP [2014] FCA 1336, citing with approval Singh v MIBP [2014] FCA 185 and Datchinamurthy v MIBP [2014] FCCA 258 where the Court referred to the ‘very clear’ words of reg 1.15C. See also Milanes v MIBP [2015] FCA 1105 and the cases cited there at [56]. Each of these judgments concerned reg 1.15C, however the Court’s reasoning would appear to apply equally to regs 1.15D and 1.15E. Singh v MIBP [2015] FCCA 1533 provides a stark example of the effect of the various amendments to the definition of ‘competent English’. In that case the applicant’s successful test was taken just outside the permissible 2 year period before the date of application, which was shortly before the introduction of the 3 year period.
The Tribunal notes that since the Courts decision in Berenguel[10] there have been amendments to regulation 1.15C. Relevant for the purpose of this matter, is the interpretation of Regulation 1.15C(1) (ba) which provides the test was conducted in the three years “immediately” before the date of the invitation. [11]
[10] MIAC v Berenguel (2010) 264 ALR 417. The High Court held in this judgment that cl 885.213, a time of application criterion for a skilled visa which requires the applicant to have either vocational English or competent English, could be satisfied by a test undertaken after an application had been made. However, the Court’s analysis turned on the particular language of the criterion in issue (not merely the definition of ‘vocational English’ or ‘competent English’) and the identified purpose of that specific criterion.
[11] As amended by Migration Amendment (2015 Measures No 1) Regulation 2015 (Cth) (SLI 2015, No 34)
Having consideration of the evidence before it, the Tribunal finds that Mr Kakunka undertook a language test as specified by the Minister on 14 May 2021, as this was after the date of invitation to apply for the visa, the Tribunal finds that the test was not undertaken in the three years immediately before the date of the invitation. Accordingly, the Tribunal finds for the purpose of r 1.15C that Mr Kakunka did not have competent English at the time of invitation to apply for the visa.
Therefore, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.
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 for applicants who were invited to apply for a Subclass 491 – Skilled Work Regional (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 491 visa.
Based on the evidence before it, the Tribunal is satisfied that the applicant was invited to apply for a Subclass 491 by a State Government Agency and that the Agency has not withdrawn the nomination.
Accordingly, the applicant is entitled to 15 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s and Tribunal’s assessments, and the information available to the Tribunal, the number of points to be awarded to the applicant under Schedule 6D are demonstrated in the following table:
Part
Qualification
Claimed EOI Points
Department awarded Points
Tribunal awarded points
6D.1
Age
15
15
15
6D.2
English language
10
10
10
6D.3
Overseas employment experience
0
0
0
6D.4
Australian employment experience
5
5
5
6D.5
Aggregated employment
0
0
0
6D.6
Australian professional year
5
0
0
6D.7
Educational
15
15
15
6D.7A
Specialist education qualification
0
0
0
6D.8
Australian study
5
5
5
6D.9
Credited community language
0
0
0
6D.10
Study in a designated regional area
0
0
0
6D.11
Partner qualifications
5*
0
0
6D.12
State or Territory nomination
0
0
0
6D.13
Designated area sponsorship
15
15
15
Total Points claimed
70*
TOTAL SCORE
65
65
The applicant’s assessed score under the points system is therefore 65 points.
*At the time of invitation, the applicant claimed 70 points including 5 for Australian professional year qualifications. Subsequent to advice from the Department dated 22 April 2021, to provide evidence to demonstrate meeting another category, the applicant sought to claim 5 points for partner qualifications.
In the application to the Department, the applicants claimed to have scored 70 points as per the invitation score. However, because the delegate was not satisfied that Ms Kakunka met Part 6D.6 and Part 6D.11, the delegate awarded Ms Kakunka 65 points.
As there have been no changes to the law impacting the points awarded to applicants for Subclass 491 visas since the time of the delegate’s decision, the Tribunal concurs with the delegate’s assessment of the score to be 65 points.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is a requirement in cl 491.216(1) of Schedule 2 to the Regulations 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. However, for the reasons set out above, the Tribunal finds that the applicant has achieved a score of 65 points, both at the time of the delegate’s decision and as at the time of this decision. Accordingly, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa and therefore finds that the applicant does not meet cl 491.261(1) of Schedule 2 to the Regulations.
Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?
Clause 491.216(2) of Schedule 2 to the Regulations provides that the applicant’s score is not less than the qualifying score. The qualifying score at the time of the delegate’s decision was 65 points: LIN 19/210. There has been no change in the qualifying score since the time of the delegate’s decision.
Having reviewed available documentation, the Tribunal is satisfied that the applicant’s score of 65 points is not less than the current qualifying score of 65 points. Accordingly, the Tribunal finds that the applicant has achieved the qualifying score, applying the law in force at the time of the Tribunal’s assessment and, therefore, finds that the applicant meets cl.491.216 (2) of Schedule 2 to the Regulations.
However, for the reasons outlined above, the applicant does not satisfy the requirements of cl 491.216(1) Schedule 2 to the Regulations. As this is a prescribed criterion for the grant of the visa, the Tribunal finds that the applicant therefore does not satisfy the requirements of cl 491.216 and accordingly the decision under review must be affirmed.
There is no evidence before the Tribunal to indicate that a secondary applicant meets the primary requirements for grant of the visa.
As the first named applicant is found not to have met the prescribed criteria for a subclass 491 visa, the second named applicant Miss Lushomo Joy Kakunka, third named applicant Miss Lumuno Faith Kakunka , fourth named applicant Miss Walusungu Christina Kakunka , fifth named applicant Miss Natasha Thokoza Ngoma and sixth named applicant Mr Alick Perry Kakunka as a member of Ms Masozi Brenda Ndhlema Kakunka’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named, third named, fourth named, fifth named and sixth named applicants do not satisfy cl.491.311.
Request for referral to the Minister
The Tribunal has no discretion to waive the specific requirements in cl. 491.216 which prescribe the only ways in which that clause can be met. Nor, does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion in relation to the merits of this case.
Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.
The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.
The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.
100. The circumstances which may be unique or exceptional in this case include, relevantly:
Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.
Is this an appropriate case to refer to the Minister?
101. In this case, for the reasons set out in this decision, the applicant has not achieved the score stated in the application to apply for the visa, hence not satisfying the requirements of cl 491.261(1) of Schedule 2 to the Regulations. However, the applicant’s score of 65 points is not less than the current qualifying score of 65 points.
102. The applicant is a 46-year-old national of Zambia who arrived in Australia in December 2009. The applicant has five children of whom the youngest Christina was born in Australia on 10 February 2014 and will turn ten in 2024.
103. The applicant has worked for her current employer INCAT Tasmania as an Accounts Officer since 1 August 2022.
104. The Tribunal notes that the intent of the Skilled Work Regional (Provisional) visa (subclass 491) is to attract skilled workers to live and work in a designated regional area of Australia. Whilst the applicant has not met the necessary points requirements under cl 491.216(1), the Tribunal is cognisant that the applicant and her family reside and work in Tasmania a designated regional area.
105. The applicant and her family have integrated well into their local community. Evidence before the Tribunal supports that the children have undertaken their formative schooling in Australia and the applicant’s spouse is an ordained Pastor of the Bread of Life Church and as a Local Minister by ACTS Global Churches. Mr Kakunka told the Tribunal that he contributes to his community through his role as a Minister and marriage counsellor.
106. The Tribunal does not consider all the above factors to be exceptional or unique, but taken cumulatively, it considers that it is warranted to refer this matter to the Minister for consideration of the exercise of the Minister's power under s.351 of the Act.
107. While the applicants do not necessarily contribute benefits that may be considered 'unique or exceptional' in Australia, the Tribunal acknowledges that the effects of COVID-19, along with the changing economic landscape have created challenges in attracting and retaining skilled workers particularly in regional Australia. The Tribunal accepts that the applicant has contributed by working in regional Australia and will continue to contribute to the regional Australian economy.
108. Having regard to the circumstances of the applicant as outlined above, the Tribunal considers that the application of the relevant legislation leads to unfair or unreasonable results in the applicants’ case. Accordingly, the Tribunal considers it appropriate to refer this matter for Ministerial consideration pursuant to s.351 of the Act.
109. The Tribunal therefore considers it appropriate to request that this case be brought to the attention of the Minister in order for him to exercise his discretionary intervention powers under s.351 of the Act.
DECISION
110. The Tribunal affirms the decision not to grant the visas.
Karen McNamara
Member
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