Berinato (Migration)

[2023] AATA 554

Berinato (Migration) [2023] AATA 554 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paolo Vincenzo Berinato

CASE NUMBER:  1918552

HOME AFFAIRS REFERENCE(S):          BCC2018/5635198

MEMBER:Alan McMurran

DATE:9 February 2023

PLACE OF DECISION:  Sydney

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 09 February 2023 at 12:29pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ‘points test’ criterion – overseas employment experience – Construction Project Manager – ANZSCO guide and description – ‘closely related’ – VETASSESS skills assessment – detailed employer letters – partner qualification – qualifying score – invitation score – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.214

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 10 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2019 to refuse to grant the applicant a Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visa under s 65 of the Migration Act 1958 (Cth) (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 applicant, Mr Paolo Vincenzo Berinato, a citizen of both the Republics of Italy and of South Africa, was invited to apply for the visa on 15 October 2018, and applied for the visa on 14 December 2018. The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 190.214. The delegate assessed the applicant with a Points Score of 60 Points and in accordance with the prescribed categories for the awarding  of points. The applicant required a qualifying score of 65 and an invited score of 70 in order to meet the eligibility criteria.

4. The applicant, who is offshore in South Africa, appeared before the Tribunal on 6 February 2023 by video, to give evidence and present arguments. The applicant was unrepresented at the time of the hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 (reg 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 (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI18/051. In the present case, the applicant nominated the occupation of Construction Project Manager (ANZSCO 133111), being an occupation included in the relevant instrument.

   Background

9. The applicant is a 33 year old single man with no dependents, currently living and working in South Africa, in or near Johannesburg. He is presently working as a construction manager on a residential site while awaiting the outcome of this merits’ review.

10. The applicant has made multiple submissions to the Tribunal referencing the points test criteria. This is in addition to the information provided to the Department with the application. The thrust of the submissions concerns the work performed by the applicant since graduating from university in 2012. The applicant seeks to have his prior overseas work experience reconsidered in order to acquire the necessary points total with the addition of an allocation of points for that category.

11. The submissions also make reference to the VETASSESS report from May 2018, and to the ANZSCO descriptions and occupational guidelines. These issues were discussed at length during the hearing and are referred to below in these reasons. Of the 14 categories for the allocation of points, there were only 2 in this application which were controversial, relating to the ‘overseas employment experience’ category, and the possibility of an allocation under the ‘partner qualification’ category.

12. The Tribunal has had regard to all of the submitted information, the Department file, the Act and the Regulations, Department guidelines, ANZSCO guidelines, and the oral evidence and argument from the hearing. Each of the relevant points calculation categories is discussed below, together with the Tribunal findings.

    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

13. 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.

14. At the time of invitation the applicant was aged 28. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

15. 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.

16. The Minister has provided in the relevant instrument, IMMI 15/005, the scores required for English language testing at both ‘superior’ and ‘proficient’ levels of English.

17. A level of ‘proficient’ English as per regulation 1.15D requires the test to be undertaken in the 3 years immediately for the day the Minister invited the person to apply for the visa. A PTE academic score of at least 65 is required in each of the 4 test components of speaking, reading, writing, and listening. A PTE Academic test score of at least 79 is required in each of those 4 components for a ‘superior’ grading [reg 1.15EA].

18. The applicant provided a copy of his PTE Academic score from a test dated 29 June 2018 showing an overall score of 80.

19. The applicant achieved individual scores of 90, 76, 80 and 84 respectively for listening, reading, speaking and writing. The applicant therefore achieved the necessary PTE Academic score for proficient English.

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

    Part 6D.3 – Overseas employment experience 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 outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.

22. The applicant was a student in South Africa until 2011 and holds a Bachelor of Science with Honours in Construction Management from the University of the Witwatersrand in Johannesburg, completed in November 2011 and awarded 25 June 2012. The applicant’s overseas work experience following completion of his studies commenced towards the end of 2012.

23. The delegate awarded no points under this part. The applicant in his submissions claimed prior overseas work experience in the occupation, or closely related to the occupation, for a period from 1 October 2012 to the end of September 2017. The applicant claims overseas work experience for a total of at least 60 months within the relevant period.

24. It is helpful to set out the ANZSCO guideline for the occupation, which includes the usual tasks for the role, as follows:

    133 Construction, Distribution and Production Managers

    Construction, Distribution and Production Managers plan, organise, direct, control and coordinate building and construction, engineering, importing, exporting and wholesaling, manufacturing, production, supply and distribution activities within organisations.

    Indicative Skill Level:

    In Australia and New Zealand:

    Most occupations in this minor group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience 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).

    Tasks Include:

    • identifying business opportunities, and developing and implementing business plans and marketing, operating, human resource, pricing and credit policies and procedures
    • establishing project schedules and budgets
    • coordinating labour resources and procurement and delivery of materials, plant and equipment
    • negotiating contracts with suppliers and customers to meet resource, cost and quality requirements
    • monitoring costs and work progress and performance, and adjusting processes and resources to ensure goals are met
    • directing the preparation of production records and reports

    Unit Group

    1331 Construction Managers

    ANZSCO - Australian and New Zealand Standard Classification of Occupations
    Reference period
    2022
    Released
    22/11/2022

    1331 Construction Managers

    Construction Managers plan, organise, direct, control and coordinate the construction of engineering projects or buildings and dwellings, and the physical and human resources involved in building and construction.

    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. At least five years of relevant experience 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).
    Registration or licensing may be required.

    Tasks Include:
    Occupations:

    • leading the coordination and prioritisation of resources across projects
    • assessing and interpreting architectural drawings and specifications
    • coordinating resources, procurement and delivery of materials, plant and equipment
    • consulting with Architects, Engineering Professionals and other professionals, and Technical and Trades Workers
    • managing links between projects and monitoring overall time, costs, quality, budget and risk
    • negotiating with stakeholders throughout the construction process and project lifecycle
    • developing tenders and contract bids
    • managing and monitoring adherence to legislation and standards of performance and safety
    • managing submission of plans to local authorities and liaising with stakeholders to undertake relevant inspections throughout the project
    • leading and managing human resources including subcontractors, standards, progress and delivery of project and program requirements
    • managing change and implementation of projects and programs
    • establishing and managing project plans to ensure alignment with program strategic goals and project outcomes
    • 133111 Construction Project Manager

    133112 Project Builder

25. The Tribunal makes reference to these tasks and alignment with the claimed work experience in these reasons. When considering an occupation for prior experience and the role performed by an applicant, the Tribunal is entitled to take into account the assessment from the relevant assessing authority, VETASSESS, together with the published ANZSCO guide and descriptions of the tasks performed that are in evidence, and as set out above, and from descriptions such as employer references. The Tribunal has regard to any other written and oral submissions provided. Such evidence cumulatively usually enables the formation of a reasonable view as to the work actually performed, and whether the tasks performed align with the occupation specified or are ‘closely related’.

26. There is no statutory definition of the expression “closely related”, which bears its ordinary meaning. An occupation may be closely related where it is complementary, linked through similar tasks, or bearing the same or similar characteristics to the occupation specified.

27. The applicant left South Africa and arrived in Australia on 24 January 2018. He remained in Australia until finally departing on 3 December 2020, during the pandemic, and at which time his Bridging visa ceased. The applicant’s resume listed the following South African work experience over 60 months in the relevant 10-year period from October 2012 to December 2018 (lodgement):

    a.Site Engineer/Agent- WBHO Construction Ltd – 1 Oct 2012 to 30 April 2015

    b.Construction Project Manager – Phoenix Machine Properties (Pty) Ltd – 1 May 2015 to 31 October 2015

    c.Development Manager – The Currie Group (Pty) Ltd – 1 Nov 2015 – 30 Sep 2017

    d.Construction Project & Portfolio Manager GECPN Investment Holdings – 1 Oct 2017- December 2017

28. The applicant raised an issue that the VETASSESS finding of a positive assessment for only part of the claimed period, deemed to be from May 2016 to September 2017, when the applicant was working for The Currie Group, was not reflective of his employment in the role, which should have been regarded as actually performed or ‘closely related’ by reference to the job tasks, throughout the whole period. He submitted that all his employment should have been counted, which amounts to 60 months in total.

29. At the hearing, he sought to challenge the assessment and gave as example that  the employment  with The Currie Group, which had lasted 24 months, was only considered relevant  for 15 months in that period, when in fact he had been doing the same work and performing the same tasks for the whole 24 months. He submitted it made no sense for the assessment to ‘split’ the employment in that period where he was continuously employed in the same role, performing the same tasks.

30. He further submitted that no attention was given to the actual detail of the large scale construction projects in which he was involved throughout the period, and the difficulty of simply determining the role by the naming of the position rather than looking at the work being performed, and which he had sought to corroborate with detailed references from the employers.

31. The Tribunal pointed out that he had not sought a formal review of the assessment. He responded that he had emailed VETASSESS and received correspondence on 14 June 2018, where the reviewer noted that he had “thoroughly  reviewed your assessment and can confirm that assessment team have followed the correct assessment policy and criteria and the outcome is valid”. He then considered that further review was unlikely to change the result and decided then to wait for the tribunal hearing to make further argument. He also submitted that the assessment had not disclosed what ‘policy and criteria’ had in fact been followed and he was unable to ascertain on what basis part of the employment period was considered “lower skill and authority level, therefore classed negatively” by the assessment officer.[1]

    [1] Quoting from VETASSESS email of 18 June 2014, from Raj Kaur

32. The Tribunal proceeded to discuss each employment claimed against the specified occupation at the hearing. It was not clear to the Tribunal from the VETASSESS description why the whole of the applicant’s experience with The Currie Group, from 1 November 2015, was not included as relevant experience for the occupation. The evidence is and the Tribunal accepts that the applicant was performing the same duties and tasks throughout the whole period of that employment over 24 months, not just for 15 months as found.

33. The report notes only a positive assessment beginning some 6 months after the employment with the Currie Group had commenced. The assessment in full  dated 31 May 2018 sets out:

    SKILLED MIGRATION ASSESSMENT

    Name: Paolo Vincenzo Berinato Date of Birth: 16 January 1990

    Nominated Occupation: Construction Project Manager (ANZSCO Code: 133111) Qualification/s: 1. Bachelor of Science in Construction Management awarded in 2011 by University of the Witwatersrand, South Africa is assessed as comparable to the educational level of an AQF Bachelor degree and is therefore at the required level.

    Field of study Construction Management is highly relevant.

    Country of employment: South Africa Employment assessed:

    1. Construction Project Manager / Development Manager, Currie Property Expertise (Pty) Ltd (05/2016 to 09/2017)

    The employment described above meets the minimum requirements for this occupation.

    Skills Assessment Outcome: Positive

    Based on the evidence provided, the qualification/s and employment described above meet the requirements of your nominated occupation and are assessed as suitable for migration purposes.

    POINTS TEST ADVICE

    The following claims of skilled employment made by the applicant are assessed as employment of at least 20 hours per week which is at an appropriate skill level and closely related to the nominated occupation of Construction Project Manager (ANZSCO Code: 133111):

    1. From 05/2016 to 09/2017, Construction Project Manager / Development Manager, Currie Property Expertise (Pty) Ltd, South Africa

    Date deemed skilled for Points Test Advice:5/2016

    Number of years assessed positively: 1.4

    The following claims of skilled employment made by the applicant have not been included in the above calculation:

    1. From 10/2012 to 04/2015, Site Engineer/Agent, WBHO Construction North (Pty) Ltd, South Africa

    2. From 05/2015 to 10/2015, Construction Project Manager, Phoenix Machine Properties (Pty) Ltd, South Africa

    3. From 11/2015 to 04/2016, Construction Project Manager / Development Manager, Currie Property Expertise (Pty) Ltd, South Africa

    as:

    ·the tasks undertaken are not closely related to the ANZSCO tasks for the nominated occupation (Employment 1)

    ·the employment was used to calculate the qualifying period required to meet the skill level of the nominated or closely related ANZSCO occupation (Employment 2, 3)

    This advice is the opinion of VETASSESS and does not guarantee the awarding of any points under the skilled migration points test. Determination of points under the skilled migration points test remains at the discretion of delegated officers of the Department of Home Affairs. Please note that the date deemed skilled for Points Test Advice is based on the evidence provided to VETASSESS and that only employment with sufficient supporting evidence has been considered.

    31 May 2018

34. The follow up from VETASSESS on 14 June 2018 states in full:

    Dear Paolo

    I refer to your email to our office dated 12th June 2018 concerning the assessment outcome of your skills assessment bearing VETASSESS reference number 18BE300798. I have thoroughly reviewed your assessment and can confirm that assessment team have followed the correct assessment policy and criteria and the outcome is valid.

    This employment period of May 2015 to April 2016 has been used for qualifying period as per VETASSESS current assessment policy and criteria.

    According to the migration regulations (as interpreted in the Procedures Advice Manual 6 D General Points test for General Skilled Migration Visas mentioned in subregulation 2.26AC) “an applicant is considered skilled for the purpose of obtaining skilled employment points from the date the relevant assessing authority assessed them as suitable in their nominated skilled occupation”. Therefore, the addition of the Date Deemed Skilled on our assessment letters is in line with migration legislation and does not change the criteria for awarding points. It aims to offer a more streamlined application process and to provide clearer guidance to migration officers deciding on points allocation. As before, VETASSESS offers advice on qualifications and employment for Point Test purposes but does not actually award any points. This remains at the discretion of DIBP officers. For any migration advice including points test related information, you may choose to contact DIBP or a MARA registered agent.

    The employment period of Oct 2012 to Apr 2015 has been assessed negatively

    As per the documents provided this role was based on lower skill and authority level, therefore assessed negatively. You have the option of applying for a review of a negative skills assessment if you disagree with the outcome of your assessment.

    I hope this information is of help to you. Yours sincerely, Raj Kaur Assessment Officer Skills Recognition General Occupations

1. The applicant submits that his overseas employment was negatively assessed unreasonably and summarises his complaint as follows:

   “Submission – 29 January 20231.5) Overseas Work Experience Conclusion:

   I therefore leave it with the AAT Member to make a decision of whether VETASSESS and more importantly the Department Of Home Affair’s Delegate should’ve acknowledged my Overseas Work Experience with WBHO to be deemed closely related to the Alternative Title of Construction Manager.

   A very important question I would like the Member to consider is whether I had put the “generic title” of Construction Manager on my WBHO Statement of Service Letter, would this have resulted in VETASSESS and ultimately the Department’s Delegate to have deemed my work experience at WBHO as acceptable? Furthermore does VETASSESS Officer’s really take into account the various tiers of Construction Companies that applicants present to determine the basis of the Construction Management hierarchy within different corporation’s titles that are presented in the candidates Statement of Service Letters? I also don’t believe that the VETASSESS officer’s take the required time to do their own research and analysis required of the tasks nor company profile background of the applicants – especially when a premium is paid for a faster turnaround through “priority processing” which is what I opted and paid for. I believe that had I worked for a tier 3 Construction Company that worked on much smaller scale projects, I indeed would’ve had the title of Construction/Site or Project Manager and ultimately the VETASSESS officer would’ve deemed the work experience as acceptable – how then is this fair when the NSW Department of Trade & Industry would be looking for Construction Project Managers with tier 1 Construction Management/Project Management Experience?

   This invaluable tier 1 construction work experience has not only been appreciated by Construction Project Management Firms within the Industry back in South Africa but has helped me unlock greater value for my Clients and Employers in Australia also. This only resonated positive feedback and interest even in Australia when I presented my CV and mentioned in interviews that I worked for Probuild’s parent company - WBHO back in South Africa. This key Construction Management experience helped me to thrive on the three projects that I Project Managed when I was under the employ of Zen Group in Brisbane, Queensland from 24/6/2019 until I was made redundant due to Covid on 4/11/2020. Due to uncertainty, which lead to the winding down of the roll out of projects in the industry along with benefits that I and my employer lost out on due to “JobKeeper & JobSaver” stimulus from the Australian Treasury having been lost out on due to my PR Visa Application having not been granted.”

2. At the hearing, the applicant sought to rely upon the detailed employer letters which had been submitted to the Department. The first letter refers to the employment with WBHO and is dated 24 April 2018. It refers to the engagement of the applicant as a site engineer from 1 October 2012 until 30 April 2015. The letter explains the project which was completion of a large commercial office development for Standard Bank. The applicant said when he joined the company, he was one of 4 site engineers on the project which he said had involved a very large workforce. He said his responsibility was completion of the eastern office tower, working in conjunction with a finishing foreman. He said he worked on the project daily with the finishing foreman and subcontractors, and directly reported to the Contract Manager who in turn reported to the Project Director, a senior officer in the organisation. The employer’s letter sets out the responsibilities for the role and which in large measure align with the ANZSCO tasks as set out above for the occupation. The Tribunal attributes considerable weight to this evidence.

3. The employment continued from November 2013 to October 2014 with the applicant working as a construction manager for a shopping centre project known as ‘Orange farm’, also within the municipality and outskirts of Johannesburg. The applicant explained his role including interpolating architectural drawings and specifications, meetings on a daily basis and for hand over to architects, signing reports for the contracts manager, dealing with labour force disputes including attending hearings, and managing plant and equipment. He was also responsible for liaising with client representatives for the retail premises, developers and their construction managers. The Tribunal places considerable weight on this evidence and on the basis the tasks and role described aligned significantly (and closely) with the ANZSCO description of the occupation as set out above.

4. The Tribunal asked about the nomenclature and description of his role as ‘engineer’ rather than ‘manager’. He explained that it is common in South Africa to be referred to on the basis of your academic qualifications which in this instance included his engineering technical skills acquired at University with his construction management degree. He said that the tasks that he performed as a construction manager are common to most construction industry backgrounds and are not solely determined by the job title used for his employment contract. He could not understand why in the formal assessment little attention seemed to have been paid to specific tasks which had been identified in his work.

5. The applicant told the Tribunal he left WBHO in April 2015 in order to gain experience on the customer side of the industry, which he regarded as the “other side” of the construction contract process. He explained that developers and clients engaged their own construction managers for oversight of the building process and for reporting on progress by builders and their subcontractors. He said this is common for large projects. His new employer, Phoenix Machine Properties, where he was engaged from April 2015 until November 2015 , and which is a subsidiary of a larger trading company, was developing an old building site with showroom premises and offices. He said he was the sole construction manager on site for the employer. The development was handed over when the project was completed by the end of 2015, when the applicant was offered a position with the Currie Group, and employed by the CEO, Mr Currie.

6. The applicant has provided work references from each of these employers, setting out his engagement and his roles, together with the tasks and duties performed on each occasion. The Tribunal is satisfied on this evidence and having listened carefully to the applicant describing his various roles that he was indeed performing a majority of the tasks aligned with the ANZSCO description of the role for a construction project manager.

7. In addition, the applicant has provided evidence from an employer, GECPN Investment Holdings, where he was engaged from 2 October 2017 until leaving for Australia in January 2018 as a construction project and portfolio manager, and which according to the reference, “he has continued to assist on a consultation basis within this role” as at the date of that reference on 3 October 2018. The Tribunal notes that there is no indication in either the delegate’s decision or by VETASSESS of any consideration of this additional material. In fairness to the applicant, he does not press that this employment should now be considered by the Tribunal, as it was for a relatively short period (several months) and he stresses instead that regard should be had to the period of 60 months’ full-time employment in the nominated role referred to above, and upon which he chooses to rely.

8. The Tribunal for its part has considered all the information. The Tribunal finds it is satisfied having regard cumulatively to the evidence of the employment history, including the written descriptions in the employer references, the oral evidence and explanations provided at the hearing, and the ANZSCO guide, that they should carry significant weight alongside the formal VETASSESS report.

9. Department Policy provides that if the skills assessing authority’s opinion would result in an applicant receiving less points than claimed in their expression of interest, decision-makers “should consider the information in ANZSCO and apply the more beneficial outcome in determining when the applicant was working at a skilled level”. In addition to the skills assessment from VETASSESS, policy considers that decision-makers also need to be satisfied in relation to the bona fides of supporting documents presented and if they carry significant weight in relation to the decision-maker’s assessment.

10. The Tribunal finds in this instance that there is no issue concerning the ‘bona fides’ of any of the supporting information. Furthermore, taking into account the concerns raised above about the VETASSESS assessment and the claimed lack of adequate reasoning attached to the assessment, the Tribunal prefers to give more weight to the ANZSCO analysis, in line with policy considerations, and by reference to the tasks being performed in the various roles as described by the applicant, and which descriptions the Tribunal accepts.

11. Based on these findings, the Tribunal is satisfied that the applicant has established a period of prior overseas employment for a period from October 2012 until September 2017 (inclusive), totalling at least 60 months, but less than 96 months, in the relevant period prior to lodgement of the application. If the period of employment with GECPN Investment Holdings were included, the total monthly calculation would be 63 months, even though the applicant has not pressed that part of the application and claim.

12. The Tribunal finds accordingly that the applicant is entitled in accordance with Schedule 6D32 for a period totalling at least 60 months, and less than 96 months, in the relevant period (10 points).

13. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

    Part 6D.4 – Australian employment qualifications

14. 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 a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

15. The applicant makes no claims in respect of Australian employment qualifications.

16. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

17. 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.

18. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10 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

19. 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 a period totalling at least 12 months in the immediately preceding 48 months.

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

    Part 6D.7 – Educational qualifications

21. 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 reg 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.

22. The applicant has provided evidence of his qualification with a Bachelor Degree in Science or Technology in Construction Management, completed in November 2010, and an Honours Degree in Science or Technology in Construction Management completed in November 2011, both from the University of Witwatersrand, South Africa. These awards are recognised in Australia as the equivalent  of a Bachelor Degree, and which entitle the applicant to an award of 15 points.

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

    Part 6D.7A – Specialist educational qualifications

24. Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a master’s degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

25. The applicant makes no claim in respect of specialist educational qualifications, as defined.

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

    Part 6D.8 – Australian study qualifications

27. 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 reg 1.15F of the Regulations. To meet the Australian 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.

28. The applicant does not claim to have engaged in any Australian study.

29. 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

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 applicant makes no claim to have acquired a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

32. 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 qualification

33. 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 reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a  specified area of Australia. Distance education does not qualify as study for these purposes.

34. The applicant makes no claim to have met the Australian study requirement (as defined in reg 1.15F) while undertaking a course of study in a specified area of Australia.

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

    Part 6D.11 – Partner skill

36. 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 and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

37. At the time the applicant was invited to apply for the visa (15 October 2018), the evidence is and the applicant has confirmed that he did not have a spouse or de facto partner.

38. Therefore, the applicant was entitled to no points under this part, at the time of application, for ‘Partner Skill’.

    Has the applicant, however, achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

39. At the time of application, the applicant made no claim in respect of having a spouse or de facto partner for the category for ‘partner’s skill’.

40. On 16 November 2019, the Regulations regarding the applicable Schedule (6D) were amended to include Schedule 6D112 under part 6D.11.The amendment renamed the Part ‘Partner Qualifications’ inserted by F2019L00578. The amendment which commenced on 16 November 2019, and after the delegate’s decision, applies to all applications not finally determined by that date and where no transitional arrangements which might otherwise limit its application have been specified. Additional points were awarded by the amendment for an applicant who has a spouse or de facto partner and met the criteria in 6D111.

41. 6D112 was inserted so as not to disadvantage an applicant who did not have a spouse or de facto partner. It states simply that if the applicant does not have a spouse or de facto partner, the applicant is entitled to 10 points.

42. On the available evidence in this case, the applicant does not have a spouse or de facto partner. The Tribunal accepts that evidence as it appears in the written application as lodged, and since updated on the applicant’s evidence at the hearing, which the Tribunal accepts, noting also the application being not finally determined while under review.

43. The Tribunal finds that the applicant is therefore entitled to 10 points under this part under the amended category of ‘Partner Qualifications’ in the Schedule, being the law in force at time of the Tribunal’s assessment.

    Part 6D.12 – State or Territory nomination qualifications

44. 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.

45. The applicant has provided a copy of the invitation to apply for the Subclass 190 visa from the NSW Government (Skill Select), valid to 14 December 2018. The invitation was not withdrawn. The Tribunal finds that the applicant meets the category for invitation from a State or Territory, and accordingly the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

46. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa or a Subclass 491 (Skilled Work Regional (Provisional)) visa. Such invitations apply to work invitations for a specified area designated by specified postcodes.

47. The applicant in this case has not been invited to apply for such a visa in a designated area, as listed in the relevant instrument, and is therefore not entitled to any points under this part.

    Conclusion on points

48. 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  10 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.7A – Specialist educational  0 points

    6D.8 - Australian study  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional Australia or a low-population growth metropolitan area   0 points

    6D.11 - Partner qualifications  10 points

    6D.12 - State or Territory nomination  5 points

    6D.13 - Designated area sponsorship qualifications/ Designated regional area nomination or sponsorship qualifications   0 points

    Total points  80 points

1. The applicant’s assessed score under the points system is therefore 80 points.

2. At the time of the delegate’s assessment the pass mark was 65 points [Legislative Instrument IMMI18/067].The applicant has therefore achieved the qualifying score to pass the points test.

   Has the applicant achieved the score stated in the invitation to apply for the visa?

3. 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 70 points.

4. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

5. For the above reasons, the applicant is entitled to a maximum of 80 points under the points test.

6. As the applicant’s score is not less than the score stated in the invitation to apply for the visa (70), and not less than the qualifying score (65), the applicant satisfies cl 190.214, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

   DECISION

7. 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.

   Alan McMurran
   Member