Farooq (Migration)

[2022] AATA 2930

Farooq (Migration) [2022] AATA 2930 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Umer Farooq
Master Azaan Umer
Ms Sabika Meraj

REPRESENTATIVE:  Mrs Vanessa Ching Vazquez (MARN: 1681278)

CASE NUMBER:  1924608

HOME AFFAIRS REFERENCE(S):          BCC2018/5003681

MEMBER:Namoi Dougall

DATE:24 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

·cl 189.224 of Schedule 2 to the Regulations.

Statement made on 24 August 2022 at 12:44pm

CATCHWORDS       
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – points test – general accountant – Australian employment experience in nominated or closely related occupation – comparison of job tasks and ANZSCO description – assessed by department as performing lower-level tasks – confirmation of responsibilities by employer – job titles do not reflect individual duties – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350
Migration Regulations 1994 (Cth), rr 1.15I, 2.26AC, Schedule 2, cl 189.224

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 Home Affairs on 23 August 2019 to refuse to grant the applicants visas 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 first named applicant (the applicant) was invited to apply for the visa on 11 November 2018 and applied for the visa on 11 November 2018. The criteria for the grant of a Subclass 189 -  Skilled - Independent visa are set out in Part 189 -  Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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’.

2. 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).

3. 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 IMMI 18/051. In the present case, the applicant nominated the occupation of Accountant (General) (ANZSCO 221111)

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

1. 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.

2. 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

1. 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.

2. Provided to the Department was an IELTS test undertaken by the applicant on 18 May 2018 which indicated that his English ability was Superior as defined by reg.1.15EA as the applicant scored at last 8 for ach of the four test components,

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

Part 6D.3 – Overseas employment experience qualifications

1. 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.

2. The applicant has made no claims and provided no evidence that he was employed in a skilled occupation for at least 36 months in the 10 years immediately before the invitation for the visa application.

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

Part 6D.4 – Australian employment qualifications

1. 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.

2. In a statutory declaration dated 1 March 2019 and provided to the Department, the applicant set out his Australian employment as follows:

   November 2018 – ongoing CMOC – Northparkes Mines

   April 2017 to October 2018 and August 2016 to December 2016 Veolia Environmental Services (Veolia)

   February 2017 to April 2017- Australia Post

   January 2017 to February 2017 Wray | Intellectual property, Trademark & Patent Attorneys

3. The Tribunal will consider the applicant’s employment with Veolia. Provided to the Department was an employment agreement between the applicant and Veolia which indicated that his employment was on a permanent full time basis in the position of assistant accountant on a salary of $53,000 plus the superannuation guarantee was to commence on 3 April 2017. The Commonwealth Bank statements for the applicant’s account for the period 22 August 2018 to 21 April 2019 indicate that the applicant was paid regular salary payments by Veolia during both periods of his employment with Veolia.

4. Also provided to the Department was a Statement of Service letter dated 23 April 2019 from Veolia (the statement of service) which confirmed the applicant was employed on a permanent full time basis from 3 April 2017 to 26 October 2018. The letter also indicated that the applicants 5 main duties were:

   ·Processing invoices in SAP and assisting accounts payable queries

   ·Preparing, reviewing and entering accruals and allocation journals for weekly and month end processes

   ·Reconciliation of balance sheet accounts

   ·Submission of divisional accounting reports

   ·Completion of data required for Sustainability reporting

5. Although the delegate was satisfied that the applicant worked for Veolia during the relevant period, the delegate was not satisfied that the tasks listed in the statement of service were consistent with those of the nominated occupation of Accountant (General) (ANZSCO 221111).and that they were more consistent with those of an Accounting Clerk (ANZSCO 551111).

6. The Tribunal has been provided with a confirmation of employment letter dated 20 September 2017 by Mr Steve Moore, General Manager Finance and Administration VIC/TAS Waste / Water (the confirmation of employment letter). In relation to the applicant’s first period of employment with Veolia the letter stated that the applicant was employed as a full time temporary accountant from August 2016 to December 2016 which was managed through Randstad. The letter further stated that the applicant started to work as a permanent employee with Veolia in April 2017 on a minimum of 38 hours.

7. The confirmation of employment letter then stated that some of the responsibilities the applicant undertook during both periods of employment included the following:

   ·Assist in budgeting and forecasting

   ·Commercial analysis & reporting

   ·Accounting Month-End

   ·General ledger maintenance

   ·Examining operating costs and income & expenditure of various 'waste' divisions

   ·Preparing performance to budget report reports for divisional supervisors and managers

   ·Profit and Loss and Balance Sheet reconciliations

   ·Reconciliation between financial reporting systems

   ·Preparation and submission of tax credits for the ATO

   ·Assistance in the audit function

   ·Liaising with external business partners to ease decision making for managers

   ·Liaising with suppliers and internal management

   ·Investigating invoices and liaising with accounts payable team

   ·Training finance and non-finance employees on ERP (SAP) and internal controls

   ·Ad hoc analysis where required

8. Also provided to the Tribunal was a letter dated 20 July 2022 from Mr Richard Hesketh Head of Workplace Relations at Veolia (the second confirmation of employment letter). The letter stated that Mr Hesketh has been in the position of Head of Workplace Relations with Veolia since July 2018. Mr Hesketh confirmed that he is aware that the applicant worked with Veolia during the 2 employment periods for 38 hours a week. Further, Mr Hesketh confirmed that he had reviewed the confirmation of employment letter from Mr Moore and confirm that the contents of the letter and the duties listed are correct. He also stated that Mr Moore ceased to work for Veolia in October 2017, but the applicant continues his work as an accountant with Veolia until 26 October 2018. Mr Hesketh then stated that he can confirm that the applicant performed the duties as listed in ANZSCO 22111 Accountant 221111 up until he resigned in October 2018.

9. Also provided to the Tribunal were a number of references in relation to the applicant’s work as an Accountant at Veolia and with his other employers. The reference dated 27 August 2019 from Ms Lisa Thomson who was the Human Resources Advisor at Veolia from 2017 to 2018 (the 2019 reference) also listed the duties carried out by the applicant during both periods of employment. The reference also stated that the duties of the applicant were in line with the usual complexities of an Accountant. The 2019 work reference further stated that due to the scale of Veolia most accounting roles were referred to as: Assistant Accountants, Finance Managers or Commercial Managers, however, the titles did not reflect the individual duties. All incumbents including the applicant, were required to be tertiary qualified, hold professional memberships and be willing to undertake post tertiary study. The reference also stated that the clerical roles were all entitled: Accounts Payable Officer, Accounts Receivable Officer and Billing Officer.

10. The duties listed in the 2019 work reference as being undertaken by the applicant are as follows:

    ·Month-End Accounting Processes

    ·Preparing, reviewing and entering accrual and journals for the weekly and month end processes

    ·Monthly, Quarterly and Annual Reporting

    ·Preparing and submitting Fuel Tax Credits (FTC) as per ATO requirements

    ·Assist the senior managers in Budgeting and Forecasting for the Victorian Business

    ·Reconciliation of the balance sheet GLs

    ·Taking up monthly accruals for the Victorian 'Waste' business division

    ·Journaling costs intra-company, between different business divisions (within the 'Waste' business)

    ·Liaising with Internal and External Stakeholders

    ·Assisting in Internal and External Audit processes

    ·Provide training to staff on computer-based Accounting Systems such as SAP R3 and SAP S4 HANA.

    ·Monthly Invoicing function, investigate and approve charges billed and pass for payment to accounts payable and clerks through SAP in National Office.

    ·Actively work with business units to improve business processes and performance; travelling to Operational sites to work closely with frontline management

    ·Challenge business practices. Develop new systems and processes; train and empower managers and their teams.

11. The Tribunal has taken into consideration the tasks listed under the Unit Group 2211 Accountants in ANZSCO and that in relation to the occupation Accountant (General) ANZSCO states that an occupant in the position: ‘provides services relating to compliance based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements.’ On the evidence set out above the Tribunal is satisfied that the applicant during both periods of employment with Veolia performed most of the duties of the nominated occupation Accountant (General). The Tribunal is also satisfied that the applicant worked in the nominated occupation during both periods of employment for a total of 21 months.

12. On the above the Tribunal is satisfied that the applicant had been employed in Australia in the nominated skilled occupation for at least 12 months but less than 36 months in the relevant period.

13. 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

1. 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.

2. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 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

1. 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.

2. Provided to the Department was a certificate of completion and a statement of achievement for the Skilled Migration Internship program in Accounting from Australian Technical & Management College. Therefore, the Tribunal is satisfied that the applicant has completed a professional year in Australia in the nominated occupation in the 48 months immediately before the invitation to apply for the visa.

3. Therefore, the applicant is entitled to 5 points under this part.

Part 6D.7 – Educational qualifications

1. 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.

2. Provided to the Department was a Bachelor of Commerce (Accounting) awarded to the applicant by the Federation University Australia on 13 May 2016 and a letter of successful completion dated 11 March 2016 which stated that the degree was for study from 18 March 2013 to 11 March 2016. Therefore, the Tribunal is satisfied that the applicant has met the requirements for the award of at least a bachelor degree by an Australian educational institution.

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

Part 6D.7A – Specialist educational qualifications

1. Ten 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 masters 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.

2. The applicant has not been awarded a master’s degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution.

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

Part 6D.8 – Australian study qualifications

1. 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.

2. The applicant has not made any claims or provided any evidence that he has been awarded a master’s degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution.

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

Part 6D.9 – Credentialled community language qualifications

1. 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.

2. The applicant made no claims and provided no evidence that he was a holder of a language qualification awarded or accredited by a body specified by the Minister at the time of the invention to apply for a visa. Therefore, the applicant is entitled to no points under this part

Part 6D.10 – Study in designated regional area qualification

1. 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 was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.

2. The applicant has made no claim and provided no evidence that he has studied in regional Australia or a low-population growth metropolitan area. Therefore, the applicant is entitled to no points under this part.

Part 6D.11 and Part 6D.112  – Partner qualifications

1. Ten points may be awarded under this Part if the applicant does not have a spouse or de factor partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same 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 had competent English. Ten 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.

2. Information provided in the applicant form indicated that the applicant was married at the time of the application and his spouse is a secondary applicant. There is no information on the Department or Tribunal files that indicates that the relationship has ceased. Further, the applicant made no claims or provided any evidence that the applicant’s partner met the partner qualifications.

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

Part 6D.12 – State or Territory nomination qualifications

1. 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 regional area nomination or sponsorship qualifications

1. 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. 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

1. 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  20 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  5 points

   6D.7 - Educational  15 points

   6D.7A – Specialist educational  0 points

   6D.8 - Australian study  5 points

   6D.9 - Credentialled community language  0 points

   6D.10 - Study in designated regional area qualification        0 points

   6D.11 - Partner qualifications  0 points

   6D.12 - State or Territory nomination  0 points

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

   0 points

   Total points  80 points

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

3. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 18/067. The applicant has therefore achieved the qualifying score to pass the points test.

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

1. At the time of the Tribunal’s decision the pass mark was also 65 points: Legislative Instrument LIN 19/210.

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

1. 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 75 points. 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.

2. For the above reasons, the applicant is entitled to a maximum of 80 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 189.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the applications for the visa for all applicants to the Minister to consider the remaining criteria.

DECISION

1. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

   ·cl 189.224 of Schedule 2 to the Regulations.

Namoi Dougall
Member