1503905 (Migration)

[2016] AATA 3036

1503905 (Migration) [2016] AATA 3036 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Azarelys Del Valle Rondon Tovar
Mr Avila Herrera

CASE NUMBER:  1503905

DIBP REFERENCE(S):  bcc2014/2899598

MEMBER:Glen Cranwell

DATE:15 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 15 January 2016 at 11:55am

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 4 March 2015 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) 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 13 October 2014 and applied for the visa on 1 November 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 the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

3. The applicants appeared before the Tribunal on 15 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

4. The applicants were represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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). In the present case, the applicant nominated the occupation of Civil Engineer.

   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. Based on the applicant’s passport showing a date of birth of 9 June 1985, at the time of invitation the applicant was aged 29. 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. Based on her IELTS test results dated 16 August 2014, with scores of less than 7 in 3 of the 4 test components, the applicant is entitled to no points 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 delegate accepted that the applicant had 91 months of relevant employment outside Australia.  The Tribunal does not dispute this finding.  Accordingly, the issue which falls to be determined is whether the applicant was employed as a Civil Engineer with Tecnodidactica Calculos y Disenos in Venezuala from March 2013 to September 2014.  The company is operated by the applicant’s father.

15. The initial difficulty faced by the applicant, as recorded in the delegate’s decision, was that the applicant was onshore in Australia during this period.  The applicant responded to this obstacle by claiming that she was performing this occupation remotely for 20 hours per week from Australia.  The applicant provided an undated and unsworn statutory declaration to the Department in which she listed her duties as follows:

    1. As Real Estate Appraisal Engineer and administrative tasks:

    1.1. Arrange and participate in videoconferences via Skype with the company's president and stakeholders.

    1.2. Build and keep tracking of strategies to attract more clients. (Advertising, social media etc.).

    1.3. Recruit and interview undergraduate engineers to carry on casual tasks in field (technical assistants).

    1.4. Liaising with clients to determine its necessities and job to be done.

    1.5. Prepare real estate appraisals quotations to clients.

    1.6. Training and give directions to technical staff in matters of preparing Inspection Reports of the properties. These reports were divided as follow:

    1.6.1.Assess condition of the property to be valuated: pictures, measures, assess condition of rooms, kitchen, bathrooms, walls, floor, windows and doors. 1.6.2. Suburb and surroundings Analysis: Facilities, transport networks, roads and town planning and urbanism.

    1.6.3. Construction: materials, structure type (concrete, steel, wood), beams, slabs.

    1.7. Receive reports from technical assistants.

    1.8.Acquire info from Cinpronet, C.A about similar properties traded in the same suburb 1.9. Filter and computing data.

    1.10.     Determine the value of the property following the standards and procedures of the Society of Appraisal Engineers of Venezuela (SOITAVE and evaluate whether the value was subject to increment or decrement using the inspection reports submitted by the technical assistant.

    1.11. Write the official appraisal report.

    1.12.Deliver and explain the report to clients.

    2. Technical advisories and preparation of Budgets as a Cost Engineer.

    2.1. Liaising with clients to determine its necessities and job to be done.

    2.2. I analysed the nature and activities about the project to be budgeted.

    2.3. I gathered the activities and costs using the Construction Cost Referential Code (CCRG) of the Colegio de Ingenieros de Venezuela (Engineers' Society of Venezuela) depending on the civil sector activity such as edifications, roads, reform and maintenance of existing buildings, minor activities on new buildings, urbanism.

    2.4. I verified that the activities to be budgeted complied with the CCRG in terms of code, description, unit of measurement and values.

    2.5. Analysed labour performance and cost per hour, material quantities and equipment required for the construction activities.

    2.6. In cases of budget update and review, I verified that the costs had not significant deviation with the CCRG, otherwise justify them with engineering judgment in order to support the information.

    2.7. I made work schedules for projects subject to budgeting.

    2.8. Attached pictures of the civil works took place (gathered in situ by the technical assistants).

    2.9. Write and deliver the final Budget.

    2.10.     Data Management: Support to technical assistants to filter and classify costs, build comparative cost charts, create and calculate KPIs (Key Performance Indicators) and analyse performance of civil works in progress (budget vs. actual cost).

    2.11.Give training and professional advice in Cost Analysis, Cost Management and Budgeting to small companies and professional individuals.

    2.12.     Prepare and submit Cost Reports to discuss via Skype with Tecnodidactica's president, staff involved in and customer in some cases.

16. The Tribunal notes that the ANZSCO description of a Civil Engineer is as follows:

    UNIT GROUP 2332 CIVIL ENGINEERING PROFESSIONALS

    CIVIL ENGINEERING PROFESSIONALS design, plan, organise and oversee the construction of civil engineering projects such as dams, bridges, pipelines, gas and water supply schemes, sewerage systems, roads, airports and other structures; analyse the likely behaviour of soil and rock when placed under pressure by proposed structures and design structural foundations; analyse the statical properties of all types of structures and test the behaviour and durability of materials used in their construction; plan and develop transportation systems; and estimate and monitor the construction costs of projects.

    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:

    ·determining construction methods, materials and quality standards, and drafting and interpreting specifications, drawings, plans, construction methods and procedures

    ·organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities

    ·obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors that affect the behaviour of soil and rock when a structure is imposed and determining the safe loading for the soil

    ·studying architectural and engineering drawings and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control

    ·monitoring changes to designs, assessing effects on cost, and measuring, valuing and negotiating variations to designs

    ·analysing structural systems for both static and dynamic loads

    ·designing structures to ensure they do not collapse, bend, twist or vibrate in undesirable ways

    ·assessing present and future travel flow patterns taking into account population increase and needs change

    ·designing the physical aspects of transportation systems such as highways, railroads, urban transit, air transportation, logistical supply systems and their terminals

    Occupations:

    233211 Civil Engineer

    
    

    233212 Geotechnical Engineer

    
    

    233213 Quantity Surveyor

    
    

    233214 Structural Engineer

    
    

    233215 Transport Engineer

    233211 CIVIL ENGINEER

    Plans, designs, organises and oversees the construction and operation of dams, bridges, pipelines, gas and water supply schemes, sewerage systems, airports and other civil engineering projects. Registration or licensing may be required.

    Skill Level: 1

    Specialisations:

    Airfield Engineer Officer (Air Force)

    
    

    Hydraulics Engineer

17. At the hearing, the applicant told the Tribunal that 65% of her duties related to real estate appraisal.  Putting aside the delegate’s concerns about the level of evidence provided, it is readily apparent that the applicant’s duties in providing real estate appraisals are unrelated to the nominated skilled occupation of Civil Engineer.  Those duties more closely match the occupation of Property Valuer (ANZSCO 2245-12), which the Tribunal considers is not closely related to that of Civil Engineer.

18. The applicant also stated that she worked between 18-20 hours, more often working 18 hours rather than 20 hours.  Employment is defined in r.2.26AC(6) to mean “engaged in an occupation for remuneration for at least 20 hours per week”.  Even if the applicant had worked 20 hours per week, given that the majority of the applicant’s duties related to property valuation, rather than civil engineering, the Tribunal is not satisfied that the applicant was employed as a Civil Engineer for at least 20 hours per week during the period claimed.

19. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.4 – Australian employment qualifications

20. 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.

21. The applicant does not claim to have been employed in Australia in her nominated skilled occupation or a closely related skilled occupation for any period before she was invited to apply for the visa.  Therefore, the applicant is entitled to no points under this part.

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

22. 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.

23. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is no points. As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

24. 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.

25. The applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

26. 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.

27. Based on the applicant’s bachelor level qualification, the applicant is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

28. 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.

29. The applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

30. 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.

31. The Tribunal finds that the applicant is not entitled to points under this part.

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

33. The Tribunal finds that the applicant is not entitled to points under this part.

    Part 6D.11 – Partner Skill Qualifications

34. 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.

35. The Tribunal finds that the applicant is not entitled to points under this part.

    Part 6D.12 – State or Territory nomination qualifications

36. 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

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  0 points

    6D.3 - Overseas employment experience  10 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

39. The applicant’s assessed score under the points system is therefore 55 points.

40. At the time of the delegate’s assessment the pass mark was 60 points. The applicant has therefore not achieved the qualifying score to pass the points test.

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 60 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not 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 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant 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

43. The Tribunal affirms the decision not to grant the visas.

    Glen Cranwell
    Member