1501432 (Migration)

[2016] AATA 4076

1501432 (Migration) [2016] AATA 4076 (7 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabricio Masson

CASE NUMBER:  1501432

DIBP REFERENCE(S):  BCC2014/3343806

MEMBER:Antoinette Younes

DATE:7 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2016 at 12:17pm

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 15 January 2015 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 December 2014 and applied for the visa on 5 December 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 1 July 2016 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   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). In the present case, the applicant nominated the occupation of University Lecturer (ANZSCO 242111).

   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. The applicant was born on 10 January 1984. At the time of invitation (2/12/14), he was 30 years of age.

9. At the time of invitation the applicant’s age was not less than 25 years and under 33 years.  Therefore, the applicant is entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

10. 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.

11. The applicant provided an IELTS results dated 6 September 2014 indicating that he obtained a score of 7 for listening, 8 for reading, 6 for writing, and 8 for speaking with an overall band score of 7.5. For the purposes of reg.1.15EA, in relation to the IELTS, to obtain any points for Superior English, the applicant has to achieve 8 in each of the four components. In relation to Proficient English, regarding IELTS, to obtain any points, the applicant has to achieve 7 in each of the four components.

12. The applicant has therefore not provided any other evidence that he has proficient or superior English and consequently no points are awarded under this part.

    Part 6D.3 – Overseas employment experience 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 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.

14. The applicant nominated the occupation of, University Lecturer (ANZSCO Code 242111), which falls under Unit Group 2421, University lecturers and Tutors. The Australian and New Zealand Standard Classification of Occupations states that:

    UNIVERSITY LECTURERS AND TUTORS prepare and deliver lectures and conduct tutorials in one or more subjects within a prescribed course of study at a university and conduct research in a particular field of knowledge.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.

    Tasks Include:

    opreparing and delivering lectures, and conducting tutorials, seminars and laboratory sessions

    opreparing and marking essays, assignments and examinations

    oadvising students on academic and related matters

    oattending departmental and faculty meetings, conferences and seminars

    osupervising work programs of postgraduate and honours students and tutorial staff

    oparticipating in setting course and degree requirements, curriculum revision and academic planning

    oserving on council, senate, faculty and other committees and professorial boards

    oconducting research and undertaking consultancies in a particular field of knowledge

    ostimulating and guiding class discussions

    • compiling bibliographies of specialised materials for reading assignments.

15. In the visa application, the applicant indicated that from 1 January 2006 to 10 January 2013, he was employed as a Strategic Marketing Planning Coordinator at Fassa Comunicacao Strategica LTDA ME, and as a communication and PR intern at Rhodia Poliamida and Especialidades LTDA from 19 July 2004 until 31 December 2005.

16. On 5 December 2014, he applicant provided a copy of his resume, a letter from his accountant, and a letter from Rhodia Group as evidence of his employment.  The resume provided by the applicant did not detail the duties with the above employers but did however, list details of lectures and seminars the applicant has given and in which he participated. Those events come to a total of five days.

17. In support of the application for review, the applicant provided copies of documents titled to whom it may concern from Laureate Australia dated 20 April 2016 referring to the applicant’s employment for over a year, Higher Education Standards Framework, ANZSCO extract in relation to unit group 2421 university lecturers and tutors, job advertisements from Seek dated 5 May 2016 relating to advertisement by Victoria University Sydney for sessional lecturers, Tertiary Education Quality and Standards Agency Act 2011, Higher Education Academic Staff Award 2010 Fair Work Commission, and submissions.  In the submissions, the applicant indicated that:

    a.The Higher Education Standards Framework establishes the minimum acceptable requirements for the provision of the higher education in all from Australia.

    b.The letter from Laureate Australia indicates that he has been employed for over a year because of, amongst other things, his vast experience in marketing.

    c.The Higher Education Academic Staff Award 2010 Fair Work Commission covers higher education employers and refers to minimum standards of academic levels.

    d.The advertisement by Victoria University Sydney shows that the successful applicant needs to have a PhD. The advertisement is also confirmation that professional experience is not only relevant but is required to be considered as a university lecturer in Australia.

    e.The ANZSCO extract states that as part of its indicative skill level in Australia and New Zealand most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification and that in some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification. The departmental officer who assessed his case partially mentioned the ANZSCO document and did not include the second paragraph.

    f.The higher education standards framework and the 2010 award clearly state the minimum requirements for a university lecturer in Australia and both confirm that professional experience in a closely related occupation can be claimed. In his opinion his work experience gained for over 10 years should be taken into account; his market experience was decisive in him being able to obtain employment as a lecturer for three employers.

18. In the course of the hearing, the Tribunal discussed with the applicant the documents which he had provided and asked him about their relevance. The applicant essentially noted that the documents show that his previous employment experience should be considered as relevant employment because had it not been for his experience, he would not have been able to obtain an academic teaching position. The Tribunal discussed with the applicant the letter from Rhodia Group dated 1 August 2014 and indicated that the reported duties appear to be closely related to a marketing position with which the applicant disagreed. He stated that the experience that he gained during his employment in Brazil is related to the nominated occupation of lecturer; he stated that without the experience, he would not have been able to obtain the academic positions in Australia. He stated that for academic positions, whilst a PHD is normally required, relevant experience can be considered in lieu.

19. The Tribunal discussed with the applicant the letter dated 1 December 2014 from Centrotec referring to the applicant’s ownership of a company and his job title as a strategic marketing planning coordinator. The Tribunal indicated that the position appears to be a marketing position unrelated to the nominated occupation.

20. The Tribunal has carefully considered the evidence and is satisfied that the applicant’s positions at Centrotec and the Rhodia group were unrelated to the nominated occupation or a closely related occupation. The Tribunal is satisfied that the positions he held were closely related to a marketing occupation rather than the nominated occupation.

21. For those reasons, the Tribunal is not satisfied that the applicant was employed in his nominated skilled occupation, or a closely related skilled occupation, for at least 36 months in the 10 years immediately before the invitation to apply for this visa. Accordingly, no points are awarded under this part.

    Part 6D.4 – Australian employment qualifications

22. 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.

23. The Tribunal discussed with the applicant the letter from Laureate Australia in relation to his recent employment. The Tribunal indicated that this employment was obtained subsequent to the date of invitation and therefore it is not relevant.

24. The applicant has provided evidence which the Tribunal accepts that he has worked as a casual lecturer/VET trainer and course developer at AIPE  from September 2013 to 2 December 2014, and at Raffles College as a lecturer (for 15 hours a week on average) from September 2013 to December 2014.

25. The Tribunal is satisfied that the applicant was employed in his nominated skilled occupation, or a closely related skilled occupation, for at least 12 months in the 10 years immediately before the invitation for the visa. Accordingly, the Tribunal awards five points under this criterion.

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

26. 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.

27. The combined number of points that the Tribunal has awarded under Parts 6D.3 and 6D.4 is five points. As this is less than 20 points the applicant is not entitled to any points under this part.

    Part 6D.6 – Australian professional year qualifications

28. 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.

29. The applicant has not made any claims or provided evidence of completing a professional year. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.7 – Educational qualifications

30. 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.

31. The applicant has a Bachelor Degree in Social Communication from the Catholic Pontiff University of Campinas, Brazil. He also has a Master of Commerce Degree from Raffles College of Design and Commerce, Australia. The Tribunal finds that the applicant has been awarded at least a bachelor qualification by another institution, of a recognised standard.  Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

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 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.

33. The Tribunal discussed with the applicant the Master of Commerce Degree from Raffles College and indicated that it would appear that the course was not completed in a total of at least 16 calendar month as a result of a total of at least 2 academic years study with which the applicant agreed.

34. As the Australian study requirement had not been met at the time of invitation, the applicant is not entitled to any points under this part.

    Part 6D.9 – Credentialled community language qualifications

35. 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.

36. The applicant has not made any claims or provided evidence that he holds a qualification awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa. Therefore, the applicant is not entitled to any points under this part.

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

37. 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.

38. The applicant has been awarded a Master of Commerce Degree from Raffles College of Design and Commerce, located in North Sydney with a postcode of 2060, Australia. That postcode is not a specified postcode and consequently, the applicant is not awarded any points under this part.

    Part 6D.11 – Partner Skill Qualifications

39. 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.

40. The applicant has not made any claims or provided evidence under this criterion and consequently, the applicant is not entitled to any points under this part.

    Part 6D.12 – State or Territory nomination qualifications

41. 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 New South Wales government invited the applicant to apply for a Subclass 190 visa and the invitation has not been withdrawn.

42. Therefore, the applicant is entitled to five points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

43. 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.

44. The applicant was not invited to apply for a subclass 489 visa and consequently no points are awarded under this part.

    Conclusion on points

45. 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  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  5 points

    6D.13 - Designated area sponsorship  0 points

    Total points  55 points

46. The applicant’s assessed score under the points system is therefore 55 points. The applicant’s invitation letter dated 20 August 2014 indicated the required score of 70 points. Therefore, the applicant has not achieved the score stated in the invitation to apply for the visa.

1. For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl.190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

   DECISION

2. The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.

   Antoinette Younes
   Senior Member