Owen (Migration)

[2020] AATA 1057

Owen (Migration) [2020] AATA 1057 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Georgina Harriet Emma Owen

CASE NUMBER:  1836031

HOME AFFAIRS REFERENCE(S):          BCC2017/1225433

MEMBER:Warren Stooke AM

DATE:2 April 2020

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.189.214 of Schedule 2 to the Regulations.

Statement made on 02 April 2020 at 1:55pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurse (Critical Care and Emergency) – ‘points test’ criterion – qualifying score – score stated in the invitation to apply – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350
Migration Regulations 1994 (Cth), rr 1.15I, 2.26AC; Schedule 2, cl 189.214; 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 20 November 2018 to refuse to grant the applicant a visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. Following an invitation to apply for the visa, the applicant applied for the visa on 31 March 2017. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

3. The applicant was represented in relation to the review by her registered migration agent.

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

   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 (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).

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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Registered Nurse (Critical Care and Emergency) ANZSCO: Code 254415.

   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

8. 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.

9. At the time of invitation the applicant was aged 29 years. Therefore, the applicant is entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

10. 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.

11. The applicant submitted documentation that shoe undertook an EILTS on 3 September 2016 (Candidate Number: 005379), which was 6 months prior to the application lodged on 31 March 2017. As such the Tribunal is satisfied that the applicant has a proficient English language score that has an overall band of 8.0.

12. On the basis of the information provided, the Tribunal has assessed, as follows:

    §6D22 – the applicant has proficient English as defined in r.1.15D (10 points)

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

    Part 6D.3 – Overseas employment experience qualifications

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

15. The applicant at the time of application submitted that she worked as a Registered Nurse at Guy’s and St Thomas’s Hospital from 1 November 2009 until 1 April 2013 and with Basingstoke and Hampshire Hospital from 1 July 2013 until 20 November 2013.

16. On this basis the applicant has had at least 3 but less than 5 years’ experience in the United Kingdom, which allows for assessed points of 5.

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

    Part 6D.4 – Australian employment qualifications

18. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

19. The applicant provided evidence that she engaged in the following employment as a Registered Nurse:

    a.Medicare Nursing Agency from 25 November 2013 to 31 January 2014;

    b.Melbourne Royal Hospital from 5 January 2014 to 14 May 2014;

    c.The Alfred from 1 January 2014 to date of application (13 March 2017)

20. On 17 March 2020, the representative, at the request of the Tribunal, confirmed to the Tribunal that the applicant had been engaged in full-time work for the period of employment in both the United Kingdom and in Australia. As such, the Tribunal is satisfied that the applicant has met cl.189.214(2) of Schedule 2 of the Regulations.

21. Therefore, the Tribunal is satisfied that the applicant has met the terms of 6D42 - for a period totalling at least 36 months and less than 60 months in the relevant period and thereby is entitled to 10 points.

22. The applicant claimed that her employment met r.2.26AC(6) (engaged in an occupation for remuneration for at least 20 hours per week) and r.2.27C (applicant held substantive visa or BVA or BVB authorising work and complied with conditions). The evidence provided by the applicant and confirmed by her representative on 17 March 2020, satisfies the Tribunal that this criterion has been met.

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

    Part 6D.7 – Educational qualifications

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

25. The applicant provided evidence that she completed the following courses of study

26. Based on the evidence provided at the time of invitation, the applicant had met the requirements of 6D72 – through the award of at least a bachelor qualification, by another institution that is of a recognised standard (15 points). This included the following:

    a.Bachelor of Emergency Nursing; Kings College London from 1 September 2011 to 1 March 2012;

    b.Graduate Diploma of Health Adult Nursing; Kings College London from 1 September 2006 to 1 August 2009.

27. Therefore, the applicant is entitled to 15 points under this part.

    Conclusion on points

28. 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  5 points

    6D.4 - Australian employment experience  10 points

    6D.5 - Aggregated employment  nil points

    6D.6 - Australian professional year  nil points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  nil points

    6D.8 - Australian study  nil points

    6D.9 - Credentialled community language  nil points

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

    6D.11 - Partner qualifications  nil points

    6D.12 - State or Territory nomination  nil points

    6D.13 - Designated regional area nomination or sponsorship qualifications nil points

    Total points  70 points

29. The applicant’s assessed score under the points system is therefore 70 points.

    Conclusions on qualifying score

30. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 16/060 of the Legislative Instruments - Skilled visas. The applicant has therefore achieved the qualifying score to pass the points test.

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

31. 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 60 points. On the basis of the point’s assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

32. For the above reasons, the applicant is entitled to a maximum of 70 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.189.214, 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

33. 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.189.214 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member