Roberts (Migration) - [2017] AATA 1571

Roberts (Migration) [2017] AATA 1571 (28 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shaun Bradley Roberts
CASE NUMBER:  1607438
DIBP REFERENCE(S):  BCC2016/1507646
MEMBER:Wan Shum
DATE:28 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:
·cl.189.214 of Schedule 2 to the Regulations.

Statement made on 28 August 2017 at 9:29am
CATCHWORDS
Migration – Skilled Independent (Permanent)(Class SI) visa – Subclass 189 – Points test visa – Bricklayer – Qualifying score achieved
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, r 1.15D, r 1.15EA, r 1.15F, r 1.15I, r.2.26AC, Schedule 2, cl 189.214, Schedule 6D
CASES
Seema v MIAC [2012] FCA 257
MIAC v Kamruzzaman (2009) 112 ALD 550
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 May 2016 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.
The applicant was invited to apply for the visa on 23 March 2016 and applied for the visa on 20 April 2016. 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.
It requires nomination of a skilled occupation and satisfaction of the ‘points test’, which essentially enables assessment of the applicant’s suitability for employment in that occupation in Australia. The applicant is claiming to have the necessary skills for the occupation of Bricklayer.
Following an assessment of the evidence provided, the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.
The applicant has sought review of that decision.
The applicant appeared before the Tribunal on 3 May 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:
·is not less than the score stated in the invitation to apply for the visa and
·is not less than the ‘qualifying score’.
Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).
The qualifying score at the time of the delegate’s assessment, and at the time of this assessment, is 60. The score in the invitation to apply for the visa was 60, based on the information provided in the expression of interest.
Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Bricklayer which is an occupation specified in the relevant Schedule of IMMI 16/060.
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?
Part 6D.1 – Age qualifications
Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.
At the time of invitation the applicant was aged 29. Therefore, the applicant is entitled to 30 points under this Part.
Part 6D.2 – English language qualifications
For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, he had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).
The applicant did not undertake a language test prior to applying for the visa. Therefore, the applicant is not entitled to points under this part.
Part 6D.3 – Overseas employment experience qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.
On the visa application form, the applicant claimed to have been employed overseas as a Bricklayer from 3 March 2004 to 26 April 2014. In the 10 years prior to the invitation to apply, the period of employment which may be counted for the purposes of this Part would be from 23 March 2006 to 26 April 2014. The following details of employment were provided: Bricklayer at May Mike Etheridge Construction in the United Kingdom from 13 March 2014 to 26 April 2014; Bricklayer at Macob Construction Ltd in the United Kingdom from 13 October 2010 to 12 March 2014; Bricklayer with R. W Christopher in the United Kingdom from 6 March 2007 to 9 October 2010; Apprentice Bricklayer with Darryl Roberts in the United Kingdom from 3 March 2004 to 3 March 2007.
The delegate assessed him as having 7 years and 1 month of employment in a skilled occupation because the delegate did not accept that employment undertaken during his apprenticeship programme could be counted under this Part.
On review, the applicant was seeking to clarify details of his overseas work experience particularly in relation to the apprentice programme and when he began as a fully qualified bricklayer. He claims to have been employed outside Australia as a bricklayer for a period totalling just over 107 months, based on his claim to have become a qualified bricklayer in Wales from May 2005 at the latest.
The applicant submitted that he began National Vocational Qualification (NVQ) courses in Trowel Occupations (Construction) Level 1 in 2003 and completed both Level 1 and Level 2 by March 2005. He submitted that at the end of this course, he had officially completed his apprentice programme ‘Bricklaying (Construction) Foundation modern Apprenticeship’ and became a fully qualified Bricklayer from 3 March 2005. He referred to two certificates which had been provided with his application, including the NVQ Level 2 certificate which was issued on 3 March 2005. The applicant submitted that he began employment with Darryl Roberts in March 2003 as an Apprentice and by March 2005 he was working as a fully qualified Bricklayer. He advised that he had his own insurance as a fully qualified Bricklayer which was compulsory, and did not require his work to be supervised from that point. He advised at the hearing that he was not able to obtain a copy of his insurance due to the time that had passed. The applicant states that his Application and resume ‘incorrectly stated’ that he began work in 2004 instead of 2003. The statement that has been provided to the Tribunal from Darryl Roberts, his father, states that the applicant began in March 2003. However, the original letter of employment from his father which was provided to the Department refers to his period of employment as starting from March 2004. The Tribunal is prepared to accept that an error was made and that he had commenced in March 2003.
The applicant further submitted that he began the National Vocational Qualification course Level 3 in Trowel Occupations (Construction) which he completed at Bridgend College from 2006 to 2007 part-time at night school while working full-time with Darryl Roberts. He stated that the course at Bridgend College could only be taken by those who had completed their apprenticeship programme and NVQ Level 2 as well as being employed as a fully qualified Bricklayer. Information provided by the applicant from the Construction Industry Training Board following the hearing indicates that the Intermediate Construction Award Trowel Occupations - Bricklaying was achieved on 13 May 2005.
While there is a discrepancy in dates, the Tribunal accepts that the applicant completed his apprenticeship by July 2005 at the latest. This is relevant because, in considering his claimed employment during that period, the Tribunal is to consider not only the tasks for the occupation of Bricklayer as set out in ANSZCO but also whether the applicant has the minimum skill level specified in ANZSCO.
This is because the Federal Court in Seema v MIAC [2012] FCA 257, when considering employment in Australia for an earlier version of the points test, Schedule 6B, found that only employment undertaken after the applicant had attained the necessary skill level qualified as employment in a ‘skilled occupation’ for the purposes of the points test. Whilst the Tribunal is considering overseas employment, a similarly worded requirement existed in an earlier version of the offshore skilled visa (Subclass 138) and was considered by the Federal Court in MIAC v Kamruzzaman (2009) 112 ALD 550, where Greenwood J at [63]-[64] found:
The skills section of the classifications does not specify a set of skills applicants must possess in order to be able to undertake the occupation. Instead, it contains information as to the qualifications required for entry to that occupation. The introductory notes to the Second Edition of the ASCO classification system confirm that the criteria used to measure skill level are formal education and/or training, and previous experience.
In order to determine whether an applicant’s employment fits into a particular ASCO classification, a decision-maker is required to consider all of the details set out in that classification. However, in making such a decision, 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 qualifications or experience prescribed for that occupation. [1]
[1] ASCO is the earlier version of ANZSCO, but only classified occupations and jobs in Australia.
The Tribunal has thus proceeded on the basis that the applicant was required to hold the qualification or the necessary experience set out under the skill level section of ANZSCO for his nominated, or a closely related, occupation. According to ANZSCO, in Australia, a Bricklayer is ANZSCO Skill Level 3. Under the indicative skill level heading for the unit group, this is AQF Certificate III including at least two years of on-the-job training or AQF Certificate IV. At least three years of relevant experience may substitute for the formal qualifications listed above, in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required.
Information printed from the TRA website[2] and provided on review is that a NVQ Level 2 from the United Kingdom is accepted as a comparable qualification in some cases and for some occupations. It relevantly states that TRA considers the NVQ 2 to be at a level broadly comparable with that of the AQF Certificate III. The list of occupations which require a comparable qualification at a different level to the AQF Certificate III did not include Bricklayer. The applicant has provided a successful Training and Employment Check from VETASSESS for the nominated occupation of Bricklayer, referring to his Level 1 and Level 3 qualifications. It does not provide confirmation as to the date the applicant is deemed to have been awarded the apprenticeship.
[2] MSA FAQs Department of Education and Training
The evidence presented indicates that the applicant completed his NVQ Level 2 on 3 March 2005. A certificate of completion certifies that the applicant had completed the Construction Apprenticeship Scheme in Bricklaying on 3 March 2005. However, a copy of the Bricklaying (Construction) Foundation Modern Apprenticeship certificate awarded by the Construction Industry Training Body (UK) to the applicant is dated 19 July 2005. The applicant explained that the two bodies were involved in a training partnership.
The Tribunal raised concerns as to whether he had a level of skill commensurate to a AQF Certificate III including at least two years of on-the-job training by the date he completed his apprenticeship. The applicant claimed that he had worked throughout the period of his studies and thus had at least two years of on-the-job training.
Following the hearing, the applicant submitted that his interpretation of Part 6D.3 is that it is the applicant’s nominated skilled occupation in the country the applicant completed the employment, not the equivalent of what is required to qualify for a licensed trade in Australia. The Tribunal has considered this submission but disagrees with this interpretation. While points are awarded for overseas work experience in the skilled occupation or closely related skilled occupation, the Tribunal considers that the skill level needs to be commensurate with the Australian requirements. This is to ensure that the likelihood of the applicant being able to work in Australia in their nominated skilled occupation is high. Thus, employment can only be counted if the relevant skill level as set out in ANZSCO is met, which needs to be equivalent to the Australian standard, and not the country where the employment was completed.
Having considered the requirements, it would appear that the applicant completed his apprenticeship in July 2005 at the latest. The Tribunal notes that the more recent letter from his father changed his start date of employment from March 2004 to March 2003, an additional year. It is prepared to accept that the applicant had also completed at least two years of on-the-job training by July 2005, having regard also to additional evidence provided of when he commenced his trowel occupation studies. In any case, only employment in the past 10 years can be counted under this Part. As the invitation to apply was issued on 23 March 2016, the 10 years period began from 23 March 2006. There is stronger evidence that he was employed for at least two years by that date.
The Tribunal also raised concerns as to the evidence provided of other claimed employment. The Tribunal accepts that the applicant was employed by his father and then R W Christopher as a bricklayer based on the letters provided. The applicant then claims to have been working for Macob Construction from 13 October 2010 to 12 March 2014.
However, the evidence provided of payments to the applicant by Macob Construction as a contractor and bank statements amounts paid to the applicant, as well as construction industry scheme payment sheets, do not cover that entire period. The material covers the period from January 2013 to February 2014. The applicant explained that the company went into administration on or around 5 March 2014 which the Tribunal accepts. He also claims that he has been unable to obtain bank statements for the period prior to January 2013, but has not provided anything from the bank confirming this claim and the Tribunal is of the view that bank statements would be available. The other evidence provided in the form of taxpayer self-employment forms that the applicant lodged as a business for tax year 6 April 2012 to 5 April 2013 and 6 April 2013 to 5 April 2014 do not show the source of income. While the description of the type of business provided was Bricklayer; the Tribunal notes that the turnover of the business was £19,265 in the April 2013 tax year and £26,952 in the following tax year. It is unclear to the Tribunal the reason for the different levels of income when the applicant claimed to have been working for Macob Construction during most of that two year period, other than a period of about 3 weeks with May Mike Etheridge. According to the bank statements provided, the entire income from his employment with May Mike Etheridge (which includes 3 weeks after the tax year) totalled £2,279.32 which does not of itself explain the different levels of income in those years. While the applicant has provided a statutory declaration stating that he was employed from 10 October 2010 to 12 March 2014 with Macob Construction for over 40 hours per week as a full-time employee, without other supporting evidence, the Tribunal is not prepared to accept that he was employed there for the entire period claimed. As such, the Tribunal will take into account the period of employment from 24 January 2013 to 21 February 2014 on the basis of the evidence of payments provided.
As referred to above, the applicant has provided copies of bank statements showing payments from May Mike Etheridge Constructions. This is consistent with his claim to have been employed there from 13 March 2014 until 26 April 2014. The Tribunal accepts that he was employed for a period of 6 weeks as a Bricklayer.
The Tribunal finds that the overseas work experience which has been supported by evidence from sources other than the applicant himself was for a period of 69 months from 23 March 2006 till 9 October 2010, from 24 January 2013 to 21 February 2014 and from 13 March 2014 until 26 April 2014.
As this is for a period totalling at least 60 months and less than 96 months in the 10 years prior to the invitation, and subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.
Part 6D.4 – Australian employment qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant was granted a Subclass 457 visa based on his sponsorship by Dean Taylor Bricklaying Pty Ltd on 8 August 2015. Additional material including payslips and copies of the applicant’s bank statements indicate that wages have been paid from this employer since early September 2014. The tribunal finds that the applicant had been employed since August 2014, and had therefore been employed as a Bricklayer for a period totalling at least 12 months and less than 36 months in the relevant period. He is therefore, subject to consideration of Part 6D.5, entitled to 5 points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15 points. As this is not more than 20 points, no points will be given under this part.
Part 6D.6 – Australian professional year qualifications
Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months. The relevant instrument (IMMI 12/029) specifies that the Professional Year Program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates is one such course.
The applicant indicated that he did not complete a professional year. Therefore, he is not entitled to points under this Part.
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. Relevantly to this case, the applicant has provided evidence for Item 6D75 to demonstrate that he has attained a qualification or award recognised by the relevant assessing authority for the applicant’s nominated skilled occupation as being suitable for the occupation.
The applicant has provided a certificate as evidence of being awarded a Certificate III in Bricklaying/Blocklaying qualification by VETASSESS on 3 March 2016.
The Tribunal notes that TRA is the relevant assessing authority for the applicant’s nominated skilled occupation of Bricklayer. VETASSESS is an approved Registered Training Organisation by TRA for the occupation of Bricklayer.
On the material before it, the Tribunal finds that the applicant is entitled to 10 points under this Part.
Part 6D.8 – Australian study qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.
The applicant is not claiming to have undertaken relevant study in Australia and is not entitled to points under this part.
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.
The applicant is not claiming, and he is not entitled to, points under this Part.
Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this part.
Part 6D.11 – Partner Skill Qualifications
Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.
The applicant has not claimed and, is not entitled to points, under this part.
Part 6D.12 – State or Territory nomination qualifications
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 informed the Tribunal that he has been invited to apply for such a visa and made an application on 18 October 2016. He advised that the visa is currently being processed and forwarded a copy of the acknowledgement letter received and a screenshot from his ImmiAccount confirming that the assessment is in progress.
The Tribunal has contacted the relevant State department who confirmed that they had nominated the applicant on 7 October 2016 and the nomination has not been withdrawn. The terms of Item 6D121 do not specify when the invitation to apply needs to be received for points to be awarded. The Tribunal further notes that nothing in r.2.26AC or the wording of Schedule 6D limits the application of item 6D121 of Part 6D.12 to an application for a subclass 190 visa. Given this, the applicant appears to be entitled to 5 points under this Part, even though this application is for the Subclass 189 visa.
Part 6D.13 – Designated area sponsorship qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
6D.1 - Age  30 points
6D.2 - English language  0 points
6D.3 - Overseas employment experience  10 points
6D.4 - Australian employment experience  5 points
6D.5 - Aggregated employment  NA
6D.6 - Australian professional year  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  10 points
6D.8 - Australian study  0 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in regional / low-population area  0 points
6D.11 - Partner skill  0 points
6D.12 - State or Territory nomination  5 points
6D.13 - Designated area sponsorship  0 points
Total points  60 points
The applicant’s assessed score under the points system is therefore 60 points. As set out above, 5 points have been awarded under Part 6D.12 despite this application being for a Subclass 189 visa. This is because the wording of the legislation and the awarding of points under Part 6D.12 are not restricted to applications for a subclass 190 visa, and the Tribunal is to give an applicant the prescribed number of points for each ‘prescribed qualification’ in the points test that the applicant satisfies (s.93(1)).
At the time of the delegate’s assessment and the Tribunal’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has thus achieved the qualifying score to pass the points test, because he has been invited to apply for a Subclass 190 visa and the nomination has not been withdrawn.
For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is the same as the qualifying score, and the score on his invitation to apply, the applicant now satisfies cl.189.214.
The application for the visa will be remitted to the Minister to consider the remaining criteria.
DECISION
The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 189 visa:
·cl.189.214 of Schedule 2 to the Regulations.
Wan Shum
Member