1418043 (Migration)

[2016] AATA 3996

1418043 (Migration) [2016] AATA 3996 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaheryar Muhammad Ali

CASE NUMBER:  1418043

DIBP REFERENCE(S):  BCC2014/1999446

MEMBER:Alan Duri

DATE:16 June 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 16 June 2016 at 8:53am

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 16 October 2014 to refuse to grant Mr Ali 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. Mr Ali was born in 1987 in Pakistan and he first arrived in Australia on 15 February 2013 on a Subclass 573 student visa.

3. Mr Ali was invited to apply for the skilled visa on 28 July 2014. He applied for the visa on 14 August 2014. 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 Mr Ali did not satisfy the ‘points test’ criterion in cl.189.214.

4. In particular the delegate gave no points for Mr Ali’s overseas employment experience qualifications.

   Hearing  

5. The review application was lodged on 4 November 2014.  Shortly after Mr Ali provided a skills assessment dated 27 November 2014 from the Australian Computer Society.

6. Mr Ali appeared before the tribunal on 15 June 2016 to give evidence and present arguments.

7. [On 10 June 2016 Mr Ali requested that the haring be postponed for 12 weeks to allow him to obtain a skills assessment.  The tribunal declined Mr Ali’s request and the hearing proceeded as originally scheduled.]

8. Mr Ali indicated that he considers that he should have been awarded points for his overseas work experience.  Mr Ali told the tribunal that he does not dispute the points awarded for the other parts.

9. Mr Ali told the tribunal that he has asked the skills assessing authority (the Australian Computer Society) to consider his recognition of prior learning.  Mr Ali explained that he could have been awarded his Bachelor degree as early as 2009 if his prior learning had been recognised.

10. The tribunal noted that the skills assessment dated 23 October 2014 indicates that he was employed by Black Stallions Trader Pakistan from August 2010 to November 2014 when in fact he arrived in and he has lived in Australian since February 2013.  Mr Ali explained that he worked remotely for the company from Australia.  He said that he ceased work in Pakistan for Black Stallions November 2012 (as indicated in his visa application and in the 23 October 2014 skills assessment).  However he recommenced work (remotely from Australia) from around May 2013.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether Mr Ali satisfies the points test criterion which requires that Mr Ali’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’.

12. 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).

13. 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).

14. Mr Ali has nominated the occupation of Computer Network and Systems Engineer (ANZSCO code 263111).

    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

15. 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.

16. At the time of invitation Mr Ali was aged 26. Therefore, he is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

17. 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.  Based on his IELTS test results Mr Ali had proficient English at the time of the invitation.  Therefore, he is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience 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 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.

19. Mr Ali’s visa application indicates that he was employed in Pakistan 1 June 2007 to 30 June 2010 as a junior installation support administrator and then from 1 August 2010 to 1 November 2012 as an IT support officer. He indicated that both positions are related to his nominated position of Computer Network and Systems Engineer.

20. If Mr Ali’s visa application is to be accepted at face value then he would be entitled to 10 points under this part because he would have had at least 60 months overseas work experience in the ten years before the invitation.

21. However Part 6D.3 requires that the relevant overseas work experience be in the nominated skilled occupation or a closely related skilled occupation.  In this case based on the skills assessment dated 27 November 2014, Mr Ali’s work experience at Black Stallions after December 2011 is considered to equate to work at an approximate skilled level to a Computer Network and Systems Engineer.  It follows that any work Mr Ali performed in Pakistan before November 2011 was not in his nominated skilled occupation or a closely related skilled occupation.  This is simply because he had not achieved the necessary skilled level (a Bachelor degree or five years relevant work experience) until November 2011.  Mr Ali gave evidence that he theoretically could have been awarded a degree in 2009 if his prior learning had been recognised.  The fact of the matter is that this did not occur.  He was awarded a Bachelor degree in December 2011.  It is speculative to suggest that somehow Mr Ali could have achieved his skills set at an earlier time.  Even if this were the case, the fact is that he did not.   

22. The time of invitation was 28 July 2014.  Mr Ali gave evidence that he worked at Black Stallions from November 2011 to November 2012.  This is about 12 months, which is short of the 36 months required to get any points under this part.  Mr Ali came to Australia in February 2013.  Therefore any work he performed for Black Stallions in Australia is not counted as overseas work experience.

23. Alternatively even if the work from May 2013 is counted as overseas work experience, Mr Ali has a total of about 25 months work, which still falls short of the 36 month requirement to get any points. 

24. Therefore, Mr Ali is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

25. 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.

26. Mr Ali gave evidence that he worked in Australia from May 2013 until November 2014 for Black Stallions.  Mr Ali explained that he was physically present in Australia during this period but that he worked “remotely” for the Pakistani based company.  There is no evidence or suggestion that Black Stallions has a physical presence in Australia. 

27. Nevertheless the tribunal is prepared to accept that Mr Ali had been employed in Australia in the sense that he was physically present in Australia and that that the work he performed was done while he was in Australia.

28. The tribunal considered whether Mr Ali’s work in Australia from May 2013 to the time of invitation in July 2014 could attract points under Australian employment qualifications.  For example item 6D41 provides five points where a person has been employed in Australia in the nominated skilled occupation or closely related skilled occupation for 12 months in the 10 years before the time of invitation.

29. Regulation 2.26AC defines “employed” in this context to mean “engaged in an occupation for remuneration for at least 20 hours a week”.  

30. In addition under r.2.27C when determining whether an applicant satisfies a criterion that the applicant had been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant held either a substantive visa or a Bridging visa A or Bridging visa B authorising him or her to work during that period, and he or she complied with the conditions of that visa.

31. Mr Ali held a Subclass 573 student visa upon his arrival in Australia and then from a 27 March 2014 he held a Bridging visa A.  Both visas have condition 8105, which effectively generally limits the holder’s work rights to 40 hours per fortnight. 

32. It follows that Mr Ali could not have been employed for “at least” 20 hours per week in the year before the invitation without breaching his visa condition.  Therefore under r.2.27C it is not possible for Mr Ali to meet the Australian employment qualification.   

33. Therefore, Mr Ali is entitled to no points under this part.

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

34. 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.

35. This part is not applicable in this case.  Therefore Mr Ali is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

36. 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.

37. There is no evidence that that Mr Ali has any relevant Australian professional year qualifications.  Therefore he is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

38. 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.

39. Mr Ali has awarded a Master’s degree by an Australian educational institution.  Therefore, he is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

40. 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.

41. No claims have been made that Mr Ali has met the Australian study criteria under r.1.15F.  Therefore Mr Ali is entitled to no points under this part. 

    Part 6D.9 – Credentialled community language qualifications

42. 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.

43. Mr Ali has made no claims that at the time of the visa application he had credentialed community language qualifications.

44. Therefore, Mr Ali is entitled to no points under this part.

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

45. 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.

46. No claims have been made under this part. Therefore, he is entitled to no points under this part.

    Part 6D.11 – Partner Skill Qualifications

47. 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.

48. Mr Ali does not have a partner.  Therefore, he is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

49. 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

50. 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

51. 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  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  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  55 points

52. At the time of the delegate’s assessment the pass mark was 60 points.  Mr Ali achieved 55 points and he therefore has not achieved the qualifying score to pass the points test.  There has been no relevant change to the Regulations concerning the points test since the delegate’s decision.

53. As Mr Ali’s score is less than the qualifying score, he does not satisfy cl.189.214.  As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

54. The tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Alan Duri
    Member