Ndhlema Kakunka (Migration) - [2023] AATA 2896

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 Kakunka
REPRESENTATIVE:  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, 2.26
CASES
Kumar v MIBP [2014] FCA 1336
MIAC v Berenguel (2010) 264 ALR 417
Milanes v MIBP [2015] FCA 1105
Thapa v MICMSMA [2021] FCCA 686
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 2896
Decision Date: 28 August 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to affirm the refusal of a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The applicant, Ndhlema Kakunka, had nominated the occupation of Accountant (General) and sought to rely on a professional year course with no expiry date and recently attained English language competency. The dispute centred on whether the applicant met the points test criteria for the visa.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the points test criterion, which requires the applicant's score to be not less than the score stated in the invitation to apply and not less than the "qualifying score". This involved assessing the applicant's qualifications and points against the relevant regulations and the Minister's prescribed pass mark, applying the law in force at the time of the delegate's assessment and the Tribunal's assessment, and favouring the applicant where more beneficial. The Tribunal also considered the definition of a "skilled occupation" as specified by the relevant instrument.

The Tribunal reasoned that it was required to assess the applicant's score under the provisions of section 350 of the Act, comparing the law in force at the time of the delegate's decision and the Tribunal's decision to determine which was more favourable. The Tribunal noted that points are awarded for various attributes, including age. In this instance, the applicant was aged 43 at the time of invitation, entitling her to 15 points under the age qualifications part of the points test, as confirmed by her passport biodata page. The Tribunal's comparative assessment of the applicant's score under different legislative frameworks was summarised in a table.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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