PARK (Migration)

[2017] AATA 289

PARK (Migration) [2017] AATA 289 (27 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms JAE HWA PARK

CASE NUMBER:  1608562

DIBP REFERENCE(S):  BCC2016/1259289

MEMBER:Rania Skaros

DATE:27 February 2017

PLACE OF DECISION:  Sydney

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 27 February 2017 at 3:30pm

CATCHWORDS

Migration – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 – Points test – Registered Nurse – Hearing not required – Achieved qualifying score

LEGISLATION

Migration Act 1958, s 65, 93, 94, 96(2), 350, 360(2)(a)
Migration Regulations 1994, Schedule 2, Schedule 6D, r 1.15, r 2.26AC, cl 189.214, IMMI 16/060

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 Immigration on 24 May 2016 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who 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 23 March 2016 and applied for the visa on 23 March 2016. The criteria for the grant of a Subclass 189 visa are set out in Part 189 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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’.

7. 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).

8. The qualifying score at the time of the delegate’s assessment, and at the time of this assessment, is 60.

9. 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 – Nec.

   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

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 37. 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. The applicant provided the Department with an IELTS test report dated 13 June 2015 in which she achieved the following results: listening 8.5, reading 7.0, writing 7.5, speaking 7.0.

14. The Tribunal is satisfied that the applicant has proficient English as defined in r.1.15D and is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

15. 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.

16. The applicant has made no claims and there is no evidence to suggest that the applicant has been relevantly employed outside Australia. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment 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 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.

18. The applicant has made no claims and there is no evidence to suggest that the applicant is entitled to points for Australian employment experience. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

19. 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.

20. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

21. 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 at least 12 months in the immediately preceding 48 months.

22. The applicant has not claimed that she completed a ‘professional year’ in Australia in the 48 months before the time of invitation to apply for the visa. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

23. 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.

24. The applicant provided evidence of Australian and overseas qualifications, including evidence of having completed a Master of Nursing Practice at the University of New England, Armidale, NSW from October 2013 to November 2015. The Tribunal is satisfied therefore that the applicant had met the requirements of the award of at least a bachelor degree by an Australian educational institution.

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

    Part 6D.8 – Australian study qualifications

26. 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 r.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.

27. The applicant has provided evidence of having completed a Master of Nursing Practice at the University of New England, Armidale, NSW between October 2013 and November 2015, whilst holding a visa authorising her to study. The Tribunal is satisfied on the evidence that the applicant met Australian study requirement at the time of invitation, the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

28. 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.

29. The applicant has not claimed to have credentialed community language qualifications and there is no evidence of an award or accreditation by National Accreditation Authority for Translators and Interpreters (NAATI) as a paraprofessional interpreter or translator, being the specified body and specified standard for this purpose. The applicant is therefore entitled to no points under this Part.

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

31. The applicant has claimed points against this part on the basis that that she studied the Master of Nursing Practice course for two years at the University of New England (postcode 2351) and lived in Armidale NSW (2350). In support of these claims she provided a completion letter from the University indicating that the course was full time / on campus and a NSW driver’s license indicating she resided in Armidale NSW 2350.

32. The delegate found that the relevant postcodes were not a specified regional and low population growth metropolitan area. The Tribunal however has had regard to the relevant instrument for this part which specifies the postcodes 2328 to 2411 inclusive, and is satisfied that the relevant postcodes, 2351 and 2350, where the applicant’s study was undertaken and where she lived during her study, are specified regional and low population growth metropolitan areas.     

33. As the applicant meets the Australian study requirement and as that study was undertaken, and the applicant lived, in a specified area of Australia the applicant is entitled to 5 points under this part.

    Part 6D.11 – Partner Skill Qualifications

34. Five 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. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

35. No claims were made for points under partner skilled qualifications. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

36. 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 area sponsorship qualifications

37. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - 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

38. 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  25 points

    6D.2 - English language  10 points

    6D.3 - Overseas employment experience  0 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.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  5 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  60 points

39. The applicant’s assessed score under the points system is therefore 60 points.

40. 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 score stated in the invitation to apply for the visa?

41. 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 points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

42. For the above reasons, the applicant is entitled to a maximum of 60 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

43. 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.

    Rania Skaros
    Member