Ogunlola (Migration)

[2019] AATA 5075

Ogunlola (Migration) [2019] AATA 5075 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Akintunde Tolu Ogunlola
Mrs Olusegun Atinuke Victoria Ogunlola
Miss Amaris Oluwanifesimi Ogunlola

CASE NUMBER:  1810432

HOME AFFAIRS REFERENCE(S):           BCC2017/3755923

MEMBER:Kira Raif

DATE:5 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 August 2019 at 11:59am

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visas – Subclass 190 Skilled – Nominated – points test criteria – Australian employment qualifications – employed in the nominated occupation at the skilled level – skills assessment – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 190.214, 190.311; Schedule 6D; rr 1.15, 2.26

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 11 April 2018 to refuse to grant the applicants visas under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (‘the applicant’) is a national of Nigeria, born in May 1978. He was invited to apply for the visa on 12 October 2017 and applied for the visa on 13 October 2017.

3. The applicants appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criteria in cl.190.214. The issue in the present case is whether the applicant satisfies the points test criteria 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’.

5. 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).

6. 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).

   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

7. 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.

8. The applicant was born in May 1978 and was invited to apply for the visa in October 2017. At the time of invitation the applicant was aged 39. Therefore, the applicant is entitled to 25 points under this part.

   Part 6D.2 – English language qualifications

9. 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 has not provided evidence of his English proficiency with the application. Therefore, the applicant is entitled to no points under this part.

   Part 6D.3 – Overseas employment experience qualifications

10. 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.

11. The applicant has not provided with his application evidence of his employment outside Australia. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment 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 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.

13. The applicant had nominated the occupation of Other Spatial Scientist (ANZSCO 232214) in his application. He stated on the application form that between May 2016 and July 2017 he was employed as a GIS Technical Officer at Mount Isa City Council and he provided evidence of his employment, including an employment contract, bank statements and confirmation of employment from the applicant’s manager. The applicant also provided evidence of his Australian employment to the Tribunal.  The applicant provided with his application the VETASSESS Skilled assessment dated 2 June 2017 which indicates that the applicant’s employment was used to calculate the qualifying period to meet the skills level for the nominated occupation and that after May 2017 the applicant’s employment would be considered as employment at the skilled level. The VETASSESS advice indicates that the years it needed to meet the skills assessment requirements are not counted for the purpose of the points test. The delegate formed the view that any employment prior to that date could not have been at the skilled level and cannot meet the suitability criteria for the nominated occupation.

14. The applicant told the Tribunal in oral evidence that when applying from the visa, he followed the guidelines on the Immigration website and he believed that once he had the 12 months’ work experience, he qualified for the points. The Tribunal accepts that the 12 months’ experience in Australia may allow for the allocation of points but the Tribunal is mindful that the experience must be in the nominated occupation or in a closely related one. That is, not every type of Australian work experience will result in the allocation of points.

15. The applicant claims there are two criteria necessary to meet the requirement for the occupation – holding a qualification that is the equivalent of a bachelor degree, which he completed in April 2016, and having one year’s experience following the graduation. He commenced his employment in May 2016. That is consistent with the advice from VETASSESS that the 12 months relevant experience concluded in May 2017. The applicant claims that he was skilled once he completed the degree and it was not appropriate for VETASESSS to require additional work experience after he completed his qualification. The Tribunal notes that the VETASSESS requirement of having to complete work experience in addition to completing a relevant degree is consistent with the entry requirements for the occupation set out in ANZSCO, which provides the following with respect to the nominated occupation:

    UNIT GROUP 2322 SURVEYORS AND SPATIAL SCIENTISTS

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1) [emphasis added]

16. Thus, the Tribunal does not consider it unreasonable for the assessing authority to specify work experience in addition to a formal qualification as an entry level to the occupation.

17. The Tribunal acknowledges the applicant’s submission that the VETASSESS opinion is not binding on the Tribunal and that the Tribunal must independently consider the allocation of points. The Tribunal accepts that argument but the Tribunal must nevertheless be satisfied that the employment was in the skilled occupation and the Tribunal has formed the view that the opinion of VETASSESS is persuasive and consistent with ANZSCO requirements. The Tribunal considers there to be no reason to disregard that opinion, given the knowledge and expertise of that assessing authority in determining the standards for certain occupations. The Tribunal gives weight to the VETASSESS assessment in relation to the applicant meeting the entry requirement for his nominated occupation.

18. The applicant states that some assessing authorities do not offer points advice and it is not fair to rely on the advice of VETASSESS which does have that additional requirement. The Tribunal is mindful that VETASSESS is the relevant assessing authority for the nominated occupation and even though the advice from the VETASSESS is not binding in relation to a finding as to the length of the applicant’s employment, the Tribunal considers that VETASSESS, as the relevant assessing authority, is best placed to make that assessment. The fact that the other authorities do not provide advice on points allocation is unhelpful. The Tribunal also notes that the ANZSCO does not require work experience in addition to the formal qualification for all occupations. It is only a requirement in relation to some occupations. It is not inappropriate then, in the Tribunal’s view, for some assessing authorities to expect the completion of work experience and to advise on this requirement when other assessing authorities do not impose that requirement.

19. The applicant states that he would not have been able to get a job at the council if he was not qualified. The Tribunal does not accept that argument because the job entry requirements established by the applicant’s employer may be quite different to the immigration or the skills assessment requirements.

20. The applicant refers to the VETASSESS advice that to meet the required skilled level, he must have completed the qualification and employment at the appropriate skill level. The applicant claims that this indicates that his employment was at the appropriate skilled level, otherwise he would not have been able to get the positive skills assessment. The applicant states that it is inconsistent to state that his first 12 months of work experience was not at the appropriate level. The Tribunal does not accept that argument. Firstly, the assessment states that applicants must have at least one year of post-qualification employment experience at ‘an appropriate skill level’. It does not require, nor refer to, employment in the nominated occupation, which is what attracts points under the Regulations. the Tribunal does not consider that the requirement to have experience at an appropriate skill level is inconsistent with the requirement that the post-qualification employment may not be counted for the purpose of points allocation if it was used to meet the entry requirement for the occupation. Secondly, the VETASSESS advice expressly states that years needed to meet the skills assessment requirement will not be counted for the purpose of the assessment.

21. The applicant states that the Migration legislation does not provide for the requirement that 12 months’ post-qualification employment is necessary to gain points, it only refers to the 12 months relevant employment. The Tribunal acknowledges that but as noted above, the legislation does refer to employment in the nominated skilled occupation or a closely related one and employment that is not considered to be at the appropriate level may not be employment in the nominated skilled occupation.

22. The applicant submits that his first year of employment cannot be considered as a qualifying experience because he has not learned anything in that year but was in fact teaching his colleagues. The Tribunal does not consider it is necessary to assess the nature of the applicant’s employment to assess whether it should be considered as his qualifying experience. The Tribunal relies on the advice from VETASSESS that the period between May 2016 and May 2017 was qualifying experience necessary for the applicant to obtain the positive skills assessment.

23. Having regard to the VETASSESS advice, the Tribunal finds that the applicant completed the requirements for the entry to his nominated occupation in May 2017 and any work experience prior to that date was not in the nominated skilled occupation or a closely related one. The Tribunal finds that the applicant’s experience, for the purpose of points allocation, commenced in May 2017. As the applicant had not been employed for at least 12 months in Australia, the Tribunal finds that, 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

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 0. 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. There is no evidence that the applicant has completed a professional year in Australia in the nominated skilled occupation or a closely related occupation. Therefore, 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. The applicant provided with his application evidence of having completed a Graduate Diploma and a Master of Geospatial Information Science from Flinders University.  The Tribunal is satisfied that the applicant met the requirements for the award of at least a bachelor degree by an Australian educational institution.  Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational 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 requirements for the award of a specialist educational qualification, as defined in r.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 two academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

31. There is no evidence that the applicant has completed a Masters by research or a doctoral degree. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

32. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed one 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 two academic years’ study.

33. The applicant provided evidence of having completed a Master of Geospatial Information Science at Flinders University. The Tribunal is satisfied that the applicant completed a registered course as a result of at least 16 calendar months and two academic years of study, that the instruction for the course was in English and that the applicant held a visa authorising him to study. The Tribunal finds that the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

34. 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.

35. There is no evidence that the applicant had a language qualification accredited or awarded by a specified body to the specified standard. 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

36. 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.

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

    Part 6D.11 – Partner skill qualifications

38. 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 a specified age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

39. There is no evidence that the applicant’s partner had nominated a skilled occupation and had been assessed as having suitable skills for the occupation by a relevant assessing authority. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or territory nomination qualifications

40. 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. There is no suggestion that the nomination by the state of Queensland has been withdrawn. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

41. 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

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  25 points

   6D.2 - English language  0 points

   6D.3 - Overseas employment experience  0 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  5 points

   6D.9 - Credentialled community language  0 points

   6D.10 - Study in regional / low-population area  5 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

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

3. 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.

4. The Tribunal finds that the applicant’s score would remain unchanged at the time of the Tribunal’s assessment. The Tribunal is not satisfied the applicant meets cl.190.214. The secondary applicants do not meet cl.190.311 and there is no evidence that they meet the primary criteria for the grant of the visas.

   Conclusion

5. 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

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

   Kira Raif
   Senior Member