Tribunal: Member W Shum
Primary Government decision
On 3 September 2020, a delegate of the Minister for Home Affairs refused to grant a permanent skilled visa (the visa) under section 65 of the Migration Act 1958 (Cth) (the Act) to the applicant, who had nominated the occupation of Registered Nurse, as the applicant did not meet the criteria for the visa.
AAT decision
The Tribunal affirmed the decision not to grant the visa.
Details
The applicant is a Registered Nurse from the Philippines. On 13 March 2020, the applicant was invited to apply for a visa.
The applicant needed to meet the minimum qualifying score of 60 and the score stated in the applicant’s invitation (95 points). The applicant achieved a score of 85.
Issue
The Tribunal needed to consider whether the applicant’s total assessed points were enough to meet the minimum pass score and the score specified in the invitation.
When applying for the visa, the applicant claimed to have been employed for at least 12 months in the nominated occupation or a closely related skilled occupation in the last 10 years in Australia.
The applicant worked as an Assistant in Nursing from 1 December 2018 to 31 October 2019. The applicant was employed as a Registered Nurse in January 2020 but was only in the role for 60 days before submitting their visa application.
Application of law
Schedule 6D of the Migration Regulations 1994 (Cth) lists the qualifications and provides points for the criterion in visa applications.
The Tribunal reviewed the applicant’s qualifications and other factors to calculate the total points earned under Schedule 6D.
Based on the information provided by the applicant, the Tribunal decided that the applicant had attained a total of 85 points as follows:
- 30 points for their age when applying for the visa
- 10 points for their English language proficiency
- 10 points for their previous employment as a nurse in the Philippines
- 15 points for completing a relevant postgraduate degree
- 5 points for completing a relevant postgraduate degree at an Australian university
- 5 points for completing a university degree at a regional Australian university
- 10 points as the applicant did not have a spouse/de facto partner.
The Tribunal found that the applicant was not entitled to any points for their Australian employment experience for two reasons. Firstly, the applicant’s roles as an assistant in nursing were not considered a ‘closely related skilled occupation’ under the Australian and New Zealand Standard Classification of Occupation which meant that it could not be counted as part of employment in Australia.
Secondly, the applicant’s work as a Registered Nurse in Australia did not amount to the minimum period of employment for the award of points because the applicant had been in the role for less than 12 months prior to receiving the invitation to apply for the visa. Her employment as a Registered Nurse after the invitation to apply for the visa cannot be considered.
For these reasons, the applicant did not achieve the invitation score.
Summary of reasons for decision
The Tribunal has affirmed the decision by the Minister’s delegate as the applicant did not meet the invitation score of 95 points.
The Tribunal acknowledged that the applicant has specialised skills that support Australian patients, but the Tribunal does not have the power to exercise discretion.
Full decision
Read the full decision on AustLII.
Glossary and other notes
Affirmed the decision: If the Tribunal affirms a decision, the original decision is not changed.
Disclaimer
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.