XIN (Migration)

[2020] AATA 3354

XIN (Migration) [2020] AATA 3354 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms WENWEN XIN
Mr YANCHAO LIU

CASE NUMBER:  2011048

HOME AFFAIRS REFERENCE(S):          BCC2020/1427872

MEMBER:R. Skaros

DATE:5 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

·cl.190.214 of Schedule 2 to the Regulations.

Statement made on 05 August 2020 at 3:50pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) – Subclass 190 (Skilled – Nominated) – points test – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 94(2), 350, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15D, 1.15F, 1.15I, 2.26AC, 2.27D, Schedule 2, cl 190.214, 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 30 June 2020 to refuse to grant the applicants visas 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. The first named applicant (the applicant) was invited to apply for the visa on 6 April 2020 and applied for the visa on 24 April 2020. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 - Skilled - Nominated 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.190.214.

3. The applicants were represented in relation to the review by their registered migration agent.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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. 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 19/51. In the present case, the applicant nominated the occupation of Registered Nurse (nec) (254499 ANZCO).

   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

9. 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.

10. At the time of invitation the applicant was aged 26. Therefore, the applicant is entitled to 30points under this part.

    Part 6D.2 – English language qualifications

11. 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 provided evidence that she undertook the PTE Academic test on 30 May 2019 and that she achieved a score of at least 65 in each of the 4 test components of listening reading writing and speaking. As such 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

12. 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.

13. The applicant provided evidence that she was employed as a Registered Nurse at the Henan Province Hospital of TCM between 1 September 2011 and 1 May 2015. Ashe also provided an Australian Nursing and Midwifery Accreditation Council  (ANMAC) skills assessment dated 10 October 2019 stated that he skills has been assessed as suitable for migration for the nominated occupation. This was in part based on evidence of her previous work experience. On the available evidence the Tribunal is satisfied that the applicant was employed outside Australia in the nominated skilled occupation for the period totalling at least 36 months and less than 60 months in the relevant period, and subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.

    Part 6D.4 – Australian employment 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 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.

15. The applicant made no claims to have been employed in Australia in the nominated skilled occupation or a closely related occupation for any of the relevant periods, and 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

16. 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.

17. In this case, the applicant did not have qualifications mentioned in 6D.4. As such the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

18. 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.

19. The applicant made no claims and provided no evidence of completing a professional yearand is entitled to nopoints under this part.

    Part 6D.7 – Educational qualifications

20. 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.

21. The applicant provided evidence that she successfully completed a Bachelor of Nursing at the University of South Australia between 20 February 2017 and 4 December 2018,  a Diploma of Advanced Nursing from Henan University of TCM dated 1 July 2010, and an Advanced Diploma of Translating at the Australian Institute of Translation and Interpretation on 13 May 2018.

22. The Tribunal finds on the evidence that the applicant has met the requirements for the award of at least a bachelor degree by an Australian educational institution; and is therefore entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

23. 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 r.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.

24. The applicant made no claims and provided no evidence that she meets the specialist education qualification requirement under Part 6D.7A and as such the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

25. 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.

26. As noted above, the applicant provided evidence that she completed a Bachelor of Nursing at the University of South Australia between 20 February 2017 and 4 December 2018. The Tribunal accepts the degree that was the result of a registered course, completed in a total of at least 16 calendar months, as a result of at least 2 years academic study, for which all instruction was conducted in English and whilst the applicant held a visa authorising the study as required by r.1.15F.

27. As the Australian study requirement had been met 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 provided evidence that she has completed an Advanced Diploma of Translating  (English - Mandarin both directions) at the Australian Institute of Translation and Interpretation on 13 May 2018. Further, she has been accredited as a one-way Professional Translator from the English language into the Chinese language by the National Accreditation Authority for Translators and Interpreters (NAATI). Her accreditation is valid from 10 October 2018 to 10 October 2021.

30. On the evidence before it the Tribunal finds that at the time of invitation the applicant had a language qualification accredited or awarded by a specified body to the specified standard in IMMI 20/2012. Therefore, the applicant is entitled to 5 points under this part.

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

31. 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 designated regional area. Distance education does not qualify as study for these purposes.

32. The applicant completed her Bachelor of Nursing at the University of South Australia. To evidence her residence in a regional area during that period she provided numerous Bank Statements addressed to her at various locations in South Australia. All postcodes in South Australia have been designated as regional areas under LIN19/217.

33. The Tribunal accepts the applicant met the ‘Australian study requirement’ as defined in r. 1.15F, and r.2.27D, that the study was undertaken in a designated regional area and whilst the applicant lived a designated regional area and that none of the study constituted distance education. Therefore, the applicant is entitled to 5 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 factor 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 / 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 / partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

35. The applicant provided no claims and provided no evidence that she met the partner skill qualification 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 for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa. The nominating South Australian government agency has not withdrawn the nomination. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated regional area nomination or 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  30 points

    6D.2 - English language  10 points

    6D.3 - Overseas employment experience  5 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.7A – Specialist educational  0 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  5 points

    6D.10 - Study in designated regional area qualification        5 points

    6D.11 - Partner qualifications  0 points

    6D.12 - State or Territory nomination  5 points

    6D.13 - Designated regional area nomination or sponsorship qualifications 0 points

    Total points  80 points

39. The applicant’s assessed score under the points system is therefore 80 points.

40. At the time of the delegate’s assessment and the Tribunal’s assessment the pass mark was 65 points: Legislative Instrument 19/210. 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 80 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 80 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.190.214, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the applications of the first and second named applicants for the visas to the Minister to consider the remaining criteria.

    DECISION

43. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

    ·cl.190.214 of Schedule 2 to the Regulations.

    R.Skaros

    Senior Member