1505162 (Migration)

1505162 (Migration) [2015] AATA 3787 (1 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Marcelo Farinelli Marcelino
CASE NUMBER:  1505162
DIBP REFERENCE(S):  BCC2015/580302
MEMBER:Mary Cameron
DATE:1 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.

Statement made on 02 December 2015 at 9:59am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 April 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.
The applicant was invited to apply for the visa on 17 February 2015 and applied for the visa on 23 February 2015. 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.
The applicant appeared before the Tribunal by telephone on 19 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bhavik Merchant.
The applicant has provided submissions to the Tribunal according to which the delegate erred in not finding that he was entitled to 10 points in relation to Part 6D.3 – Overseas employment experience qualifications. He provided a copy of a Skills Assessment issued by the Australian Computer Society on 8 April 2013; a work reference from Sphere System dated 4 February 2013 stating that the applicant was employed as a senior database administrator from 1 July 2006, and two Certificates of Achievement from Microsoft dated 2001 and 2002.
The applicant’s submission is that the delegate was mistaken in assessing that 1 July 2011 is the earliest date, based on the applicant’s employment experience, that he could be considered to be employed at the appropriate skill level with reference to ANZSCO such as to be entitled to points in relation to Part 6D.3.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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).
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 15/091. In the present case, the applicant nominated the occupation of ICT Security Specialist.
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
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.
At the time of invitation the applicant was aged thirty eight. Therefore, the applicant is entitled to 25 points under this part.
Part 6D.2 – English language qualifications
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.
The applicant provided the Department with a copy of an International English Language Testing System (IELTS) Test Report Form indicating that on January 2015 he obtained IELTS test results of 8.0 for Listening; 8.0 for Reading; 7.0 for Writing and 8.0 for Speaking with an Overall Band Score of 8.0.
The applicant has therefore achieved proficient English as defined in r.1.15D (10 points) under Part 6D22
Therefore, the applicant is entitled to 10 points under this part.
Part 6D.3 – Overseas employment experience qualifications
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.
The applicant’s nominated occupation is ICT Security Specialist. The delegate had regard to the Australia New Zealand Standard Classification of Occupations (ANZSCO) for the nominated skilled occupation as follows;
262112 ICT Security Specialist
Indicative Skill Level:
In Australian and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal 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)
The delegate found that, based on this information, and because the applicant does not hold a Bachelor Degree, and given the evidence he had provided regarding his qualifications and work experience, the earliest he could be considered to be working at the appropriate skill level in his nominated occupation is
·January 2012 if based on the date he was awarded vendor certification by Microsoft which was recognised by ACS as being suitable for his nominated occupation; or
·1 July 2011, which is the date, based on the information provided that he attained five years of relevant experience.
The delegate found that the applicant was employed outside Australia in his nominated skilled occupation or a closely related skilled occupation from 1 July 2011 to 11 April 2013, and accordingly the delegate was not satisfied that he was employed in his nominated skilled occupation or a closely related skilled occupation for at least 36 months in the ten years immediately before the invitation to apply for the visa. No points were awarded under this part.
The applicant’s evidence is that when he started his employment as a Senior Database Administrator with Sphere System in 2006 he already had the skills necessary to do undertake the role. He also at that time had attained the necessary skills through formal training at a certified Microsoft training provider to work as a Database Administrator. He has referred to documentary evidence from his employer and from the Brazilian Ministry of Work and Employment that he was formally employed by Sphere System from July 2006 to April 2013 as a Senior Database Administrator, and two Certificates of Achievement of formal training as a Database Administrator dated 2001 and 2002 both undertaken at Microsoft certified Technical Education Centres. The applicant told the Tribunal that, based on his experience, the delegate was wrong to conclude that he only reached the relevant skill level to substitute for the formal qualification in July 2011.
The Tribunal explained that the Tribunal, in determining whether an applicant for a Skilled visa has been employed in a specific nominated skilled occupation for the purposes of the points allocation in Part 6D, is required to determine whether the applicant possessed the “skill level” nominated by the ASCO classification system for that occupation. Therefore any employment undertaken prior to an applicant attaining a qualification that is stated to be an “entry requirement” for the relevant occupation cannot be counted for the purposes of the point category. In the applicant’s case this means that he achieved the “entry requirement” for his nominated skilled occupation at the point when he had attained five years of relevant experience on 1 July 2011, (or alternatively when he obtained vendor certification from Microsoft in January 2012) and his employment undertaken prior to him attaining that “skill level” cannot be counted for the purposes of points to be allocated under Part 6D.3.
The applicant stated that he does not agree with this interpretation.
The witness provided evidence of the very high level of skill and responsibility which the applicant has in his current employment role, which is why he was recruited in, and of his importance to the company where he holds a senior role.
In assessing his overseas employment experience the delegate concluded that, as the applicant did not have a Bachelor degree, the applicant needed to have completed at least 5 years’ relevant work experience and/or relevant vendor certification as a substitute for the formal qualification. The delegate concluded therefore that his skilled date for the purposes of calculating his overseas work experience was July 2011. In finding when the applicant can be considered to be suitably qualified in his nominated skilled occupation or a closely related skilled occupation, the Tribunal has considered his claim that he had reached the relevant skill level at an earlier time. It has considered his submissions regarding the letter from his employer and from the Brazilian Ministry of Work and Employment, and the Certificates of Achievement of formal training in the Microsoft Approved Courses of Administering Microsoft SQL and programming Microsoft SQL, which were undertaken at Microsoft certified Technical Education Centres in 2001 and 2002.
The Tribunal acknowledges that the classifications contained within ANZSCO are intended merely as a guide, and that it would be improper to apply ANZSCO classification codes strictly. It is important to note that ANZSCO itself does not purport to definitively or prescriptively lay out the expectations for qualifications and experience that would qualify a professional, to perform any nominated role at the appropriate level of skills and ability. Ultimately, the Tribunal must consider the specific occupation which has in fact been nominated by the standard business sponsor. In this process, it would be erroneous to elevate ANZSCO to the level of a regulatory criterion, and the Tribunal approaches its task by treating ANZSCO as an indicative guide, albeit a consideration very relevant to its determination concerning the applicant’s skills to perform the occupation of an ICT Security Specialist.
The Tribunal is satisfied that the nominated occupation is commensurate with that of an ICT Security Specialist as described in ANZSCO.
However the Tribunal is not satisfied there is sufficient evidence regarding the applicant’s employment in the period prior to 2006 for the Tribunal to be satisfied this was relevant experience and/or on the job training as a substitute for the formal qualification for this occupation. Having considered all of the evidence, the Tribunal finds that the applicant’s relevant work experience in Brazil commenced on 1 July 2006 when he commenced employment with Sphere IT Solutions as a Senior Database Administrator. The Tribunal finds therefore that the work experience commenced in July 2006, and on 1 July 2011 he attained five years of relevant experience.
Accordingly the Tribunal finds that the applicant was employed outside Australia in his nominated skilled occupation or a closely related skilled occupation from 1 July 2011 to 11 April 2013. It follows that 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 the visa.
The alternative to the relevant period of work experience is vendor certification which may substitute for the formal qualification (see paragraph 17 above – extract from Australia New Zealand Standard Classification of Occupations (ANZSCO)). The evidence before the Tribunal, as discussed with the applicant at the hearing, is that the applicant obtained relevant vendor certification by Microsoft in January 2012 which was recognised by ACS as being suitable for his skilled occupation. As the date of vendor certification is a later date than the achievement of the five years relevant work experience in July 2011 the recognition of vendor certification as the date from which the applicant could be considered to be working at the appropriate skill level in his nominated occupation does not benefit him in relation to this part.
Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.
Part 6D.4 – Australian employment qualifications
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.
The applicant has claimed to have been employed in Australia in his nominated occupation or a closely related occupation at a skilled level for 1 year in the ten years before the time he was invited to apply for the visa. Based on the evidence before it the Tribunal accepts this claim.
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
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.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 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
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.
The applicant agreed that he has not completed a professional year in Australia. Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
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.
The applicant’s qualifications have been assessed by the Australian Computer Society (ACS), which found that his Microsoft Certified IT Professional from Microsoft Corporation completed in January 2012 is assessed as comparable to an AQF Diploma with a major in computing, and his Microsoft Certified Technology Specialist from Microsoft Corporation completed in January 2012 is assessed as comparable to an AQF Diploma with a major in computing (Departmental file, f.21). ACS found that his skills have been assessed to be suitable for migration under 262111 (Database Administrator) of the ANZSCO Code.
The applicant has attained a qualification or award recognised by the relevant assessing authority for his nominated skilled occupation as being suitable for the occupation. Therefore, the applicant is entitled to 10 points under this part.
Part 6D.8 – Australian study qualifications
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.
In the present case the applicant agreed that he has not undertaken studies in Australia that would satisfy the Australian study requirement.
As the Australian study requirement had not been met at the time of invitation, the applicant is entitled to no points under this part.
Part 6D.9 – Credentialled community language qualifications
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.
The applicant agreed that he has no qualification in a particular language for the purposes of Part 6D.9. Therefore, 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
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.
The applicant agreed that he has not studied or lived in a specified area of Australia for the purposes of Part 6D.10.
Therefore, the applicant is entitled to no points under this part.
Part 6D.11 – Partner Skill Qualifications
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.
The applicant agreed that he does not have a spouse or de facto partner who is an applicant for the same visa subclass. Therefore, the applicant is entitled to no points under this part.
Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications

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, and the nomination of Western Australia has not been withdrawn.
Therefore, the applicant is entitled to 5 points under this part.
Part 6D.13 – Designated area sponsorship qualifications
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
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  25 points
6D.2 - English language  10 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  10 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
The applicant’s assessed score under the points system is therefore 55 points.
At the time of the delegate's assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore not achieved the qualifying score to pass the points test. The Tribunal finds that the qualifying score remains unchanged at the time of the Tribunal's assessment.
CONCLUSION
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.190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.
Mary Cameron
Member

[2015] AATA 3787

1 December 2015

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