Rai (Migration)

[2022] AATA 101

Rai (Migration) [2022] AATA 101 (19 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sapana Rai

REPRESENTATIVE:  Mr Moses Mark (MARN: 1461832)

CASE NUMBER:  2003273

HOME AFFAIRS REFERENCE(S):          BCC2019/6366667

MEMBER:Andrew George

DATE:19 January 2022

PLACE OF DECISION:  Darwin

DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 491 visa:

·cl 491.216 of Schedule 2 to the Regulations.

Statement made on 19 January 2022 at 10:18pm

CATCHWORDS

MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 - Skilled Work Regional (Provisional) – occupation of Enrolled Nurse – applicant’s related roles as a Personal Care Assistant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, Schedule 2, cl 491.216; Schedule 6D; rr 1.15, 2.26, 2.27

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 12 February 2020 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 27 November 2019 and applied for the visa on 29 November 2019. 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 delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 491.216.

3. The applicant appeared before the Tribunal on 14 October 2022 to give evidence and present arguments. The applicant was represented by Mr Mark of KBA Global Pty Ltd, who did not appear.

4. For the following reasons, the Tribunal has concluded that the decision under review 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 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. It must consider the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment. The Tribunal must then 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 (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 10/079. In the present case, the applicant nominated the occupation of Enrolled Nurse.

   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. The applicant was born on 17 November 1997. At the time of invitation the applicant was aged 22 years. Therefore, the applicant is entitled to 25 points under this part.

   Part 6D.2 – English language qualifications

10. 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. The Tribunal notes the applicant’s Pearson – PTE Academic test of 14 June 2019. She scored 80 for Listening, 73 for Reading, 82 for Writing, and 90 for Speaking. Accordingly, the applicant has proficient English as defined in reg 1.15D and is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

11. 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.

12. The applicant made no claims to relevant overseas employment experience and is therefore not entitled to any points under this part.

    Part 6D.4 – Australian employment qualifications

13. 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.

14. The Tribunal has examined the applicant’s curriculum vitae and other relevant material on the Departmental file. The Tribunal is satisfied that the applicant maintained the following employment:

    a.Enrolled Nurse at Top End Medical Centre from 22 August 2019 to the date of application on 12 February 2020. The Tribunal assesses the tasks of this position to be the occupation of a 411411 Enrolled Nurse at Skill Level 2, within the description of ANZSCO.

    b.Personal Care Assistant with Medication Administration endorsement at Royal Avenue Retirement Lodge from 1 July 2018 to 30 June 2019. The Tribunal assesses the tasks of this position to be the occupation of a 423313 Personal Care Assistant at Skill Level 3, within the description of ANZSCO.

    c.Personal Care Assistant at Nazareth Care from 7 February 2018 to 20 July 2019. The Tribunal assesses the tasks of this position to be the occupation of a 423313 Personal Care Assistant at Skill Level 3, within the description of ANZSCO.

15. The applicant’s full-time experience as an Enrolled Nurse at Top End Medical is expressly within her nominated occupation and the Tribunal accepts five months of experience.

16. The Tribunal has considered whether the applicant’s experience as a Personal Care Assistant, particularly with a Medication Administration endorsement, is a closely related skilled occupation to that of an Enrolled Nurse. The Tribunal has done so considering the tasks enumerated in the ANZSCO, and the applicant’s actual tasks listed in her curriculum vitae.

17. The Tribunal takes note of the supervision and administration of medication, and substantial care planning tasks, undertaken as a Personal Care Assistant. On balance, and despite the minor difference in Skill Level, the Tribunal is satisfied that the applicant’s actual experience of 17 months as a Personal Care Assistant is sufficiently closely related to that of an Enrolled Nurse for the purposes of Part 6D.4. Accordingly, the Tribunal accepts 24 months of Australian employment experience.

18. The Tribunal notes that evidence before it is imprecise as to the exact hours worked by the applicant in her roles as a Personal Care Assistant. However, the Tribunal is satisfied that she was remunerated for a least 20 hours a week for at least 12 months of her Australian employment experience: reg 2.26AC(6). The Tribunal is also satisfied as to the regularity of the applicant’s visa conditions whilst so doing: reg 2.27C.

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

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

20. 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.

21. The combined number of points that would be awarded 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 this part.

    Part 6D.6 – Australian professional year qualifications

22. 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.

23. The applicant is not entitled to any points under this part as she has not provided evidence in support of such a claim.

    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 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.

25. At the time of invitation, the applicant possessed a Diploma of Nursing from the Australasian Lawrence Aged Care College. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.7A – Specialist educational qualifications

26. 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 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.

27. The applicant has not provided any evidence of any specialist educational qualifications. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.8 – Australian study qualifications

28. 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 study.

29. During the hearing, the applicant was candid that her Diploma of Nursing studies at Australasian Lawrence Aged Care College did not meet the Australia study requirement. The Commonwealth Register of Institutions and Courses for Overseas Students lists the course duration as 80 weeks. This is less than the 92 weeks required by two academic years of study. Therefore, the Australian study requirement had not been met at the time of invitation and the applicant is not entitled to any points.

    Part 6D.9 – Credentialled community language qualifications

30. 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.

31. The applicant is not entitled to any points under this part as, at the time of invitation, she did not have a language qualification accredited or awarded by a specified body to the specified standard.

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

32. 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.

33. The applicant has not provided any evidence in support of any claim of meeting the Australian study requirement. Accordingly, the applicant is not entitled to any points under this part.

    Part 6D.11 – Partner qualifications

34. Ten points may be awarded under this Part 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. 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.

35. In her application, the applicant gave her relationship status as ‘Separated’. This did not trouble the delegate and, in the absence of any evidence of a spouse or de facto partner, the applicant is entitled to 10 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 regional area nomination or sponsorship qualifications

37. 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.

38. The applicant was invited to apply for her visa and the Northern Territory Government has not withdrawn its nomination. Therefore, the applicant is entitled to 15 points under this part.

    Conclusion on points

39. 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  5 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  10 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  10 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination or sponsorship qualifications   15 points

    Total points  75 points

40. The applicant’s assessed score under the points system is therefore 75 points.

41. At the time of the delegate’s assessment the pass mark was 65 points: LIN 19/210. There has not been any change to the Regulations or pass mark by the time of the Tribunal’s decision. 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?

42. 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 75 points. Because of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

    DECISION

43. The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 491 visa:

    ·cl 491.216 of Schedule 2 to the Regulations.

    Andrew George
    Member