1500336 (Migration)

[2015] AATA 3109

1500336 (Migration) [2015] AATA 3109 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Robelyn Lastimosa Abano

CASE NUMBER:  1500336

DIBP REFERENCE(S):  BCC2014/2920014

MEMBER:Filip Gelev

DATE:6 July 2015

PLACE OF DECISION:  Melbourne

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

·cl.190.214 of Schedule 2 to the Regulations.

Statement made on 06 July 2015 at 11:36am

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 23 December 2014 to refuse to grant the applicant a Skilled - Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) 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 2 October 2014 and applied for the visa on 4 November 2014. The criteria for the grant of a Subclass 190 visa are set out in Part 190 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 applicant appeared before the Tribunal on 26 May 2015 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter 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 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).

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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 14/048.

8. In the present case, the applicant nominated the occupation of Developer Programmer.

   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 25 (DOB 25 May 1989). Therefore, the applicant is entitled to 30 points 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.

12. The applicant did not claim to have ‘superior English’ or ‘proficient English’ as defined in r.1.15EA and r.1.15D respectively.

13. There are no points available for ‘competent English’, as defined in r.1.15C, the level of English demonstrated by the applicant (she submitted the results of an International English Language Testing System test dated 5 January 2013).

14. Therefore, the applicant is entitled to 0 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 (5 points), 60 (10 points), or 96 (15 points) months in the 10 years immediately before that time.

16. The applicant obtained a skills assessment, dated 22 April 2013, from the Australian Computer Society (ACS). The assessment was as follows: each degree she obtained – the Diploma and the Advanced Diploma in Australia, and the Bachelor degree in the Philippines were assessed as ‘comparable’ to a diploma, advanced diploma and bachelor degree respectively.

17. In relation to the applicant’s work experience in the Philippines, the assessment letter stated:

    Your work experience has been calculated as follows on the basis of full time employment of at least 20 hours per week:

    Dates: 11/07 – 06/09 (1 yrs 7 mths)

    Position: Web Designer/Developer

    Employer: All Star Computers

    Country: Philippines

    Dates: 07/09 – 01/11 (1 yrs 6 mths)

    Position: Web Developer Programmer

    Employer: Codeworks.ph, Inc.

    Country: Philippines

18. There is no indication in the letter that the majority of that work experience cannot be used to claim points for employment experience. In the Tribunal’s view, the warning in the ACS letter that ‘While the ACS is authorised to assess ICT skills assessments, the final decision in awarding points remains with the Department of Immigration’ is not particularly helpful to potential visa applicants, because both the Department and the Tribunal are bound to adopt the standards used by ACS (see paragraph 14 below).

19. The Tribunal notes that the ACS assessment does not mention the date from which the applicant is considered to be fully qualified, that is, the date after which work experience would be counted for the purposes of the qualifying score. A lay person unfamiliar with the ACS assessment guidelines could conclude that she or he would be entitled to claim points for the entire duration of their employment experience overseas. This was exactly what the applicant did. In this case, the period of work was more than 3 years from November 2007 to January 2011. She thought she could claim 5 points. When the applicant lodged her expression of interest, she did so because she misunderstood the ACS letter.

20. Nevertheless, the Tribunal must accept the ACS assessment as correct. Under r.2.26B(2) the standards against which the skills of a person are assessed by a relevant assessing authority, such as ACS, for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.

21. The current ACS guidelines state that where an applicant has completed a Bachelor Degree, with an ICT Major, as the applicant in this case:[1]

    [1] ‘Skills Assessment Guidelines for Visa Applicants’ V3.4, 2015, Australian Computer Society, accessed on 25 May 2015, at p. 3.

    If your degree is assessed as having an ICT major which is closely related to your nominated occupation, you will require 2 years relevant work experience completed within the past 10 years…

22. The applicant completed 2 years of work experience on or around 1 November 2009. However, at that time she was still studying towards her bachelor’s degree.

23. The ACS guidelines further provide that a person’s work experience completed before the completion date of their qualification, as is the case with this applicant, is not counted. The “Skill Level Requirement Met Date” is determined on the earliest date that both the relevant work experience and the qualification are completed.[2] In the present case, the applicant completed her Bachelor degree on 1 May 2010. Thus, none of the work experience between 1 November 2009 and 1 May 2010 can be counted, because the applicant had not finished her degree.

    [2] ‘Skills Assessment Guidelines for Visa Applicants’ V3.4, 2015, Australian Computer Society, accessed on 25 May 2015, at p. 5.

24. The Tribunal considers that ACS should provide more user friendly letters which warn applicants that they must consult the ACS guidelines or that not all of the work experience can be counted for the purposes of the ‘points test’. 

25. In accordance with the ACS guidelines, the Tribunal can only count work experience post May 2010. That period is approximately 7 months, from May 2010 to January 2011.

26. Therefore, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

27. 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.

28. The word ‘employed’ is defined in r.2.26AC(6) as ‘engaged in an occupation for remuneration for at least 20 hours a week’.

29. The applicant has been working on a full time basis at Encore Beverages Pty Ltd as Web Developer since 15 January 2014. As already noted, the applicant was invited to apply for the visa on 2 October 2014. Therefore, at the time of invitation, the applicant had not been working in the nominated occupation or a closely related occupation for at least 12 months. The period 15 January 2014 to 2 October 2014 equals just over 37 weeks. At the hearing the Tribunal advised the applicant that if she can demonstrate that she was in employment for another 15 weeks, that would add up to a total of 52 weeks or 12 months together with the Encore Beverages’ employment period. Then, she would be entitled to 5 points.

30. Because the term ‘employed’ is defined by reference to 20 hours of work in a week, the Tribunal needs to make findings in relation to individual weeks. The word ‘week’ is not defined in the Regulations, nor in the Acts Interpretation Act 1901. It can mean either a period of 7 days or it can mean a period of seven days commencing on Monday and ending on Sunday.[3]

    [3] The latter was the definition of ‘week’ in cl. 8104(6) and 8105(3) and it applied in relation to condition 8104 and 8105 respectively for visas granted between 26 April 2008 and 25 March 2012.

31. In the case of MIMIA v Alam, which concerned a Student visa, the Federal Court (Allsop and Wilcox JJ) observed that the natural meaning of the word ‘week’ is a week commencing, depending on its context, either on Sunday or Monday. Whilst finding it unnecessary to express an opinion as to whether Sunday was preferable to Monday (the primary judge’s view), their Honours rejected the proposition that ‘week’ could mean any period of seven consecutive days.[4] The Tribunal has decided to adopt a beneficial interpretation of week as any seven day period commencing on a given Sunday and ending on the following Saturday or a Monday and ending on the following Sunday.

    [4] MIMIA v Alam (2005) 145 FCR 345 at 349, 357.

32. After the issue was discussed with the applicant at the hearing, on 28 April 2015 the applicant wrote to the Tribunal and provided evidence of employment experience in her occupation in Australia. On 5 June 2015 the Tribunal wrote to the applicant to advise that on the information before it, it was not satisfied that the applicant had the requisite number of work experience in Australia. On 18 June 2015 the applicant provided further evidence in support of her claims.

    PsychPress, and Norse Design and Oyangoren: 14-19 June 2011, 4-10 and 11-17 July 2011

33. The evidence the applicant provided was that she had a contract as a casual employee with PsychPress. A copy of a contract, dated 31 May 2011, was provided. The applicant also provided bank statements for the period 28 April 2011 to 17 July 2011. She was paid by PsychPress $470 on 22 June, $538 on 4 July and $430 on 18 July 2011. Because the hourly rate was $20, this means that she completed 23.5 hours in the period 6-21 June (payment received on 22 June); 26.9 hours in the period 22 June-3 July (payment received on 4 July); and 21.5 hours in the period 4-17 July (payment received on 18 July).

34. The applicant has not provided a further break down of the exact hours of work per week she completed. The Tribunal’s task is complicated further by the fact that the ‘pay periods’ are different, that is, she was paid on different days of the week (22 June 2011 was a Wednesday, 4 July 2011 a Monday, 18 July 2011 also a Monday).

35. As it is not possible to find out the exact days and hours when the applicant worked during the period the Tribunal gives the applicant the benefit of the doubt and accepts that she worked approximately the same number of hours every week in the 6 weeks from 6 June to 17 July 2011. The total number of hours worked is about 72 (71.9). This means that the applicant worked an average of just under 12 hours a week. Because the term ‘employed’ is defined by reference to 20 hours of work in a week, the Tribunal finds that the hours the applicant completed at PsychPress are not sufficient for the Tribunal to find that the applicant was ‘employed’ in June-July 2011. However, the applicant worked for other employers during that time.

36. The same bank statements (for the period 28 April to 17 July 2011), and a copy of an invoice from her to Norse Design, dated 21 June 2011, reveal that the applicant was paid $400 by Norse Design on 23 June 2011 for 12 hours of work in the period 14-19 June 2011. On the basis of the evidence, the Tribunal finds that the applicant was employed in the week of 14-19 June 2011 (12 hours for PsychPress and 12 hours for Norse Design).[5]

    [5] It follows that the applicant was ‘employed’ during that week.

37. She also provided an invoice, dated 15 July 2011, she issued to Oyangoren Developments which indicates that she completed 9 hours of work from 4-8 July 2011 and 9.5 hours of work from 9-15 July 2011. On the basis of the evidence, the Tribunal finds that the applicant was in employed in the following two weeks: 4-10 July 2011 (12 hours for PsychPress and 9 hours for Oyangoren Developments) and 11-17 July 2011 (12 hours for PsychPress and 9.5 hours for Oyangoren Developments).[6]

    [6] ‘Employed’ for a total of 3 weeks.

    Australian Christian Churches: 3-9 December and 10-16 December 2011

38. The applicant also provided an invoice, dated 13 January 2012, for work she did in December 2011 for Pastor Ian Kruithoff of Australian Christian Churches. According to the invoice she completed 20 hours of work on 4, 5 and 6 December and another 20 hours on 10, 11, 12 and 13 December. The Tribunal therefore accepts that the applicant was employed in the weeks of 3-9 December and 10-16 December 2011.[7]

    [7]‘Employed’ for a total of 5 weeks.

    Oyangoren: 24-30 March and 31 March-6 April 2012

39. The applicant provided an invoice dated 9 April 2012 for two weeks of work for the same business Oyangoren Developments: 20 hours of work in the period 24-26 March 2012 (week of 24-30 March) and another 20 hours in the period 31 March – 6 April 2012 (week of 31 March-6 April).[8]

    [8] ‘Employed’ for a total of 7 weeks.

    Lpgautopower.com.au / Palmburg.com.au: 6-12 July 2013

40. The applicant provided an invoice, dated 12 July 2013, for work for the websites lpgautopower.com.au and palmburg.com.au. The Tribunal finds that the applicant was employed in the week of 6-12 July 2013.[9]

    [9] ‘Employed’ for a total of 8 weeks.

    The Bible Series and Australian Christian Churches: 7-13 September 2013

41. The applicant provided two further invoices, one dated 12 September 2013 and one dated 13 September 2013. The first one was for 12 hours of work for the website thebibleseries.com.au. The second one was for 11 hours of work for Pastor Ian Kruithoff. (Australian Christian Churches)The Tribunal finds that when the two are combined, the applicant was employed in the week of 7-13 September 2013.[10]

    [10] ‘Employed’ for a total of 9 weeks.

    Hope of Life: 14-20 September 2013, 21-27 September 2013 and 24-30 November 2013

42. The applicant provided three invoices for work done for Hope of Life, each one for 20 or more hours, dated 20 September 2013, 27 September 2013 and 29 November 2013. On the basis of the invoices, the Tribunal accepts that the applicant was employed in the weeks of 14-20 September 2013, 21-27 September 2013 and 24-30 November 2013.[11]

    [11] ‘Employed’ for a total of 12 weeks.

    Christian Clothing: 30 September-5 October 2013 and 13-19 October 2013

43. Further invoices indicated that the applicant was employed by Christian Clothing in the weeks of 30 September-5 October and 13-19 October 2013 (invoices dated 4 October and 18 October 2013).[12]

    [12] ‘Employed’ for a total of 14 weeks.

    Ifef-Shemery.org: 3-9 November 2013

44. The applicant provided invoiced she issued to Ifef-Shemery.org for the week of 3-9 November 2013 (invoice dated 8 November 2013) and on that basis the Tribunal accepts she was employed during these two weeks[13]

    [13] ‘Employed’ for a total of 15 weeks.

    My Goodwill Journey: 6-12 October 2013 and 10-16 November 2013

45. Finally, the Tribunal accepts on the basis of invoices to My Goodwill Journey that the applicant was employed in the weeks of 6-12 October 2013 (invoice dated 11 October 2013) and 10-16 November 2013 (invoice dated 15 November 2013).[14]

    [14] ‘Employed’ for a total of 17 weeks.

46. The applicant provided various other invoices. It is not necessary for the Tribunal to consider them, because the above invoice, in combination with the applicant’s work at Encore Beverages Pty Ltd between 15 January 2014 and 2 October 2014, add up to at least 52 weeks or 12 months of employment in Australia.

47. 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

48. 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.

49. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 and therefore Part 6D.5 is not applicable.

    Part 6D.6 – Australian professional year qualifications

50. 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.

51. The applicant has not claimed any points under this part and on the evidence before it, the Tribunal finds that the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

52. 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.

1. The applicant completed a Bachelor of Science in Computer Engineering on 14 May 2010 at the Polytechnic University of the Philippines.

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

   Part 6D.8 – Australian study qualifications

3. 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.

4. The applicant completed a Diploma of Information Technology, followed by an Advanced Diploma of Information Technology in 2011-2012.

5. 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

6. 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.

7. The applicant has not claimed any points under this part and on the evidence before it, the Tribunal finds that the applicant is entitled to no points under this part.

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

8. 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.

9. The applicant has not claimed any points under this part and on the evidence before it, the Tribunal finds that the applicant is entitled to no points under this part.

   Part 6D.11 – Partner Skill Qualifications

10. 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.

11. The applicant has not claimed any points under this and on the evidence before it, the Tribunal finds that the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

12. 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.

13. There is no evidence before the Tribunal that the nominating State, Victoria, has withdrawn the nomination.

14. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

15. 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

16. 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  0 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  5 points

    6D.5 - Aggregated employment  - 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  0 points

    6D.11 - Partner skill  0 points

    6D.11 - State or Territory nomination  0 points

    6D.12 - Designated area sponsorship  5 points

    Total points  60 points

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

18. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.

19. For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is equal to the qualifying score, the applicant satisfies cl.190.214.

    DECISION

20. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

    ·cl.190.214 of Schedule 2 to the Regulations.

    Filip Gelev
    Member