1516505 (Migration)

[2016] AATA 3420

1516505 (Migration) [2016] AATA 3420 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jordan Dino Fernandez

CASE NUMBER:  1516505

DIBP REFERENCE(S):  BCC2015/3414240

MEMBER:Glen Cranwell

DATE:9 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 09 March 2016 at 11:43am

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 1 December 2015 to refuse to grant the applicant 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. The applicant was invited to apply for the visa on 9 October 2015 and applied for the visa on 19 November 2015. 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 applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review 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 Software 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

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.

9. Based on the applicant’s date of birth of 9 August 1990, at the time of invitation the applicant was aged 25. 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 the results of an IELTS test conducted on 29 August 2015 with the following results: 6.5 in Listening; 6.5 in Reading; 6.5 in Writing; 6.5 in Speaking.  As the applicant has not achieved scores of least 7 in each of the four test components, he has not achieved “proficient English” or “superior English”.  Therefore, the applicant is entitled to no points under this part.

    Part 6D.3 – Overseas employment experience qualifications

12. 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.

13. The applicant has claimed to be employed outside Australia as follows:

    ·Software Developer Associate (Intern) – February 2009 to July 2009;

    ·Software/Web Developer Associate Intern – June 2009 to May 2011;

    ·Associate Consultant – July 2011 to May 2013;

    ·Software Engineering Team Lead – July 2013 to August 2014.

14. The Tribunal notes that the applicant obtained his Bachelor degree in Science, Business or Technology from the Polytechnic University of the Philippines on 6 May 2011.

15. The delegate found that the entry level requirements prescribed by the ANZSCO for the nominated occupation of Software Engineer is a level of skill commensurate with a Bachelor degree or a higher qualification. The delegate found that only employment undertaken after the completion of a Bachelor degree or higher qualification can be counted as skilled employment. The delegate found that because the applicant was awarded his Bachelor degree on 6 May 2011, only employment after that time can be “counted” as skilled employment. The delegate found, therefore, as the applicant’s claimed period of employment was from July 2011 to May 2013 and July 2013 to August 2014, that he has only been employed at the recognised skilled level for a total of 35 months. Accordingly, the delegate found that the applicant had not been employed at the recognised skilled level in his nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36 months in the 10 years immediately before the invitation to apply for the visa.

16. At the hearing, the Tribunal advised the applicant that its preliminary view is that the delegate has correctly assessed his employment and judicial consideration of this issue, which is binding on the Tribunal, requires that he has the relevant qualification for a particular skill in order for him to have been considered to have been employed in the skilled occupation.

17. The applicant stated that he had been employed by Five Point Technology from 6 May 2013 to 30 June 2013, which would take his total employment 36 months.  He indicated that he has a “soft copy” income tax return from the Philippines to support this claim.  He has been trying to contact the company since December 2015 to obtain an employment certificate, but has been unsuccessful.

18. Having considered this issue, the Tribunal is satisfied that the Federal Court of Australia has found that the skills that are to be considered are those set out in the ‘skill level’ section of the classification to which the applicant’s position is being compared. That is, the decision requires a consideration of whether the applicant holds the qualification or experience prescribed for that occupation. In the relevant cases, the Court stated that a decision maker is required, in determining whether a person has been employed in a specific nominated skilled occupation, whether the person possessed the ‘skill level’ nominated in the relevant guide.[1] In this matter the relevant guide is the Australian and New Zealand Classification of Occupations, version 1.2, 2013) which specifies that for the occupation of Software Engineer the entry level requirement is a level of skill commensurate with a Bachelor Degree or Higher. As the applicant completed his Bachelor degree on 6 May 2011, the Tribunal is not satisfied that prior to that time that the applicant was employed in the skilled occupation of Software Engineer.

    [1] See Seema v MIAC [2012] FCA 257 (20 March 2012) in which Siopsis J followed the decision of MIAC v Kamruzzaman [2009] FCA 1562 (Greenwood J), 23 December 2009.

19. The relevant periods are therefore, from July 2011 to May 2013, when the applicant worked as an Associate Consultant, and July 2013 to August 2014, when worked as a Software Engineering Team Lead (sic).  While the Tribunal has some doubts about whether the applicant was employed by Five Point Technology from May 2013 to June 2013, the Tribunal will give the applicant the benefit of the doubt and accepts his evidence in this respect.  The Tribunal is satisfied that this equates to a period totalling at least 36 months.

20. The Tribunal finds, therefore, that the applicant was employed in his nominated skilled occupation or a closely related skilled occupation for a period totalling at 36 months in the 10 years immediately before the date of the invitation to apply for the visa.  Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.

    Part 6D.4 – Australian employment qualifications

21. 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.

22. The applicant has claimed to be employed in the skilled occupation in Australia for a period of 15 months in the 10 years immediately before the invitation to apply for the visa.

23. Based on the information before it, the Tribunal is satisfied that the applicant had at least 12 months of employment in Australia in his nominated skilled occupation or a closely related occupation in the 10 years immediately before the invitation to apply for the visa.  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

24. 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.

25. 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

26. 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.

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

    Part 6D.7 – Educational qualifications

28. 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.

29. Based on the applicant’s Bachelor degree in Science, Business or Technology from the Polytechnic University of the Philippines, the applicant is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

30. 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.

31. At the hearing, the applicant provided evidence that he is currently studying for a Master of Information Technology Project Management at Swinburne University of Technology.  He has not completed this qualification.

32. 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

33. 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.

34. 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

35. 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.

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

    Part 6D.11 – Partner Skill Qualifications

37. 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.

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

    Part 6D.12 – State or Territory nomination qualifications

39. 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

40. 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

41. 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  5 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  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  55 points

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

43. 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.

44. 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.

45. 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

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

    Glen Cranwell
    Member