Safdar (Migration)

[2023] AATA 591

Safdar (Migration) [2023] AATA 591 (3 March 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Syed Zeeshan Safdar

REPRESENTATIVE:  Mrs Jennifer Bardenhagen (MARN: 1278277)

CASE NUMBER:  1917546

HOME AFFAIRS REFERENCE(S):           BCC2017/1572794

MEMBER:  Wan Shum

DATE:  3 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 3 March 2023 at 1:42pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Telecommunications Engineer – ‘points test’ criterion – overseas employment experience qualifications – Network Engineer – Senior Sales Engineer – BSS Engineer – educational qualifications – qualification obtained from Pakistan – comparability to an Australian degree – partner qualifications – qualifying score – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 189.214

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 12 June 2019 to refuse to grant the applicant a Skilled - Independent visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a visa designed for skilled applicants

   who have submitted an expression of interest and received an invitation to apply for the visa.

1. The applicant was invited to apply for the visa on 15 March 2017 and applied for the visa on 2 May 2017. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and includes consideration of a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.214.

1. The applicant sought review of that decision and was represented in relation to the review.

1. The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 23 August 2022 to give evidence and present arguments. He joined the hearing from Canada. His representative was present throughout also by videoconference from another location.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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’.

1. 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).

1. 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). Based on the date of the invitation to apply, the relevant instrument for this purpose is Legislative Instrument IMMI 16/059. In the present case, the applicant nominated the occupation of Telecommunications Engineer – ANZSCO code 263311 which is specified in the Schedule 1 ‘Skilled Occupation List’ so is a skilled occupation as defined.

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.

1. At the time of invitation, the applicant was aged 30. 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. Points are only awarded for superior English or proficient English as defined. The applicant indicated on the visa application form that he had undertaken an English test in the previous 36 months.

1. The Pearson language test report form reflects that he achieved 69 and above for each of the test components; with an overall band score of 72. This does not meet the definition of superior English in reg 1.15EA but does meet the minimum scores for proficient English as defined in reg 1.15D.

1. Therefore, the applicant is entitled to 10 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 at least 36, 60, or 96 months in the 10 years immediately before that time.

1. The applicant provided the following details of overseas employment on his visa application form:

   Position: Senior Sales Engineer Employer name: Astaa Technologies Country: PAKISTAN

   Date from: 21 August 2013
   Date to: 02 June 2014

Position: Networking Engineer Employer name: AA Technologies Country: PAKISTAN

Date from: 27 June 2011
Date to: 01 July 2013

Position: BSS Engineer Employer name: TIER4 pvt ltd Country: PAKISTAN

Date from: 01 July 2010
Date to: 01 July 2011

1. His answer to the question as to whether he had been employed overseas in their nominated occupation or a closely related occupation at a skilled level, immediately before invitation to lodge this application was yes, and claimed to have been employed for 3 years

in the past 10 years, however, did not indicate on the form which of the employment he was claiming points for. The Skills Assessment provided from Engineers Australia recognised 3 years from June 2011 to June 2014 of relevant overseas skilled employment in the occupation of Telecommunications Engineer. As the employment with TIER4 pvt ltd was prior to that date, it appears that this employment is not considered to have been in the nominated skilled occupation, or a closely related skilled occupation.

1. In support of his claim for employment with AA Technologies, he provided two letters from the employer, one of which is undated, and the other dated 21 June 2017 outlining his duties as a Network Engineer; along with payslips from June 2011 and July 2013.

1. In the reference letter it states that the applicant has been employed as a Network Engineer from 27 June 2011 to 1 July 2013. Given this, it is unclear why he would have drawn a full months’ salary for the months of June 2011, when he would have worked for 3 days, and July 2013, where he would only have worked for 1 day. For this reason, the payslips do not appear to the Tribunal to be reliable evidence of his claimed dates of employment. As the applicant claimed he was paid in cash, there is no contemporaneous evidence of his employment, such as wage payments into his bank account. The bank account statements reflect that he deposited money regularly, but the amounts vary and does not display a pattern that could be readily connected to his claimed wages.

1. Additional checks were attempted by an officer in the overseas post who listed a number of concerns based on the information provided and due to this, indicated that s/he had serious concerns about the claim.

1. The applicant was invited to comment on these concerns and submitted an explanation as well as further documents to support his claim, but the delegate did not consider that there was sufficient evidence to establish his claims of having at least 36 months of overseas employment in the skilled occupation or closely related skilled occupation.

1. On review, the Tribunal received submissions addressing the delegate’s findings, essentially stating that no adverse information should be drawn from the concerns identified in the conclusion by the delegate regarding the evidence provided and the applicant should be viewed as genuine in his claims. The Tribunal has considered the submissions and evidence and notes the following.

1. It was submitted that the errors in recollecting information during an unexpected phone call made four years after the employment in question was reasonable and that, at the time of the call, AA Technologies hired '8 to 10 people' which it was submitted added to the difficulty of articulating specific job duties for a former staff member (the applicant) during an unexpected call. While the errors alone would not necessarily result in a conclusion that the employment claims were bogus, in the Tribunal’s view it does not prove the applicant’s claim was true either. In respect of the misspelling of the business name AA Technologies as AA Technology, it was initially claimed that it was an unintentional error and misinterpretation due to “incompetent employees” unable to “interpret the difference of the names while making stamp and letterhead” and on review it was submitted that the frequency of misspelling English words in Pakistan was the subject of an article and that no adverse finding should be made in relation to this. While the Tribunal accepts that this may occur, it does not consider that the explanation of itself raises the creditability of the applicant’s claims of employment with AA Technologies/Technology. Other concerns identified during the employment checks includes incorrect contact phone numbers in the employment reference letters. The missing “0” from the phone number was not directly addressed on review, although an explanation was provided for why it was not possible to contact the 'Human Resources Specialist', Ms Nida Hassan, as she had immigrated to Canada in 2017 and therefore the Pakistani phone number supplied with the visa application was no longer

active. The applicant had supplied a copy of an email from Ms Nida Hassan where she confirms the applicant’s claims of employment with AA Technologies/AA Technology from June 2011 to July 2013 as a Network Engineer.

1. The Tribunal is prepared to accept that the business existed in 2011, despite the inconclusive evidence from the verification checks, with purchase orders from a few different customers reflecting that AA Technology/Technologies was a vendor. There is also what appears to be a screenshot of Federal Board of Revenue records of Mr Nadeem Abbas reflecting that he had registered two business names, one of which was ‘AA Technology’ as well as a certification from March 2011 in respect of Mr Abbas of AA Technology. In addition, there is a phone bill from Pakistan Telecommunication Company Limited issued on 15 August 2015 for the phone number displayed in the footer of the letter, which reflects a history of payment since January 2015. These documents tend to support a conclusion that the company operated from 2011 to August 2015. There is also a letter from Nokia Solutions and Networks (Pakistan) formerly Nokia Siemens Networks which confirms that the applicant was assigned by AA Technologies to carry out LAN cabling, laying, terminating and patching for them in Islamabad and Kabul, Afghanistan and sets out the same employment dates referred to in the employment reference.

1. Having regard to the above, while some concerns were raised following the conversations between the officer undertaking the employment check with two different people from AA Technologies, when the record of questions and answers are considered along with the other documents and the evidence given at the hearing, the Tribunal is prepared to accept that the applicant was engaged as a site engineer with the business for the claimed period of 24 months.

1. The Tribunal has carefully considered the evidence of claimed employment with ASTAA Technologies as a Senior Sales Engineer and TIER4 pvt ltd as a BSS Engineer. In respect of the employment with ASTAA, his duties as listed in the employment letter were: supervising the technical team on projects assigned; sales promotion of telecom equipment; identifying and solicitation of potential clients; tasked to assess client's needs, resources and recommend the appropriate solutions; develop reports and proposals as part of sales presentation to illustrate benefits with the usage of equipment's or service; providing estimated installation costs for maintenance of equipment or service; prepare and administer Sales Contracts; consult with clients after sales to resolve problems and facilitating the ongoing support; deployed imVision System Manager for active network monitoring.

1. Having regard to these duties and the ANZSCO, the employment with ASTAA Technologies appears to align with the occupation of Unit Group 2522 ICT Sales Representative rather than the nominated occupation of Telecommunications Engineer (ANZSCO 263311). As to whether it could be said to be a closely related skilled occupation, the occupation of ICT Sales Representative does not meet the definition of “skilled occupation” as the occupation is not specified for the purposes of Subclass 189.

1. The applicant’s employment with TIER4 pvt ltd appears to have commenced a few months after finishing his Bachelor studies in Electronic Engineering, with the letters stating that he worked there from 1 July 2010 until 1 July 2011. As noted above, this period of employment was not part of the skills assessment. It is unclear exactly why and the applicant gave evidence that part of the skills assessment would have involved providing evidence of career episodes. The applicant has provided payslips and letters in support of this claim and confirmed this employment at the hearing, saying he had left TIER4 and moved to AA Technologies to improve his knowledge. There seems to have been a week crossover based on the commencement dates set out in the letters. The Tribunal has carefully considered the evidence provided but does not accept that he was employed in his nominated occupation or a closely related skilled occupation for that 12 month period.

1. The applicant has also provided evidence of other employment which includes letters from: National Telecommunications Corporation that the applicant was an “internee” from 5 May 2011 to 4 May 2012; “ufone” stating that he was an intern from December 2007 to January 2008, but no details as to what his position entailed; Digital Information Systems that the company used the applicant’s services on a temporary basis as a Hardware Engineer from 15 May to 31 December 2004. The Tribunal notes that the applicant had not completed his Diploma studies in 2004 so did not appear to hold any qualifications as an Engineer, having only completed senior secondary school in April 2004. In addition, this period of employment is more than 10 years prior to the invitation to apply. In terms of the claimed employment with “ufone” as an intern, it is not clear from the letter what the applicant’s duties were and the Tribunal does not accept this period of employment as being in the nominated occupation or a closely related skilled occupation. The 12 months as an internee at National Telecommunications Corporation overlap with the claimed employment at TIER4 and AA Technology/Technologies, and the Tribunal does not consider that this should be separately counted as an additional 12 months.

1. The evidence provided reflects that the applicant was employed for 24 months in his nominated occupation in the 10 year period before the invitation to apply. This means he is not entitled to 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

1. The applicant did not claim to have been employed in Australia in the nominated occupation or a closely related occupation immediately before lodging the application and did not provide any evidence of having been so employed. Therefore, the applicant is not entitled to points under this part.

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

1. This part is only relevant where an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4. As the Tribunal did not find that the was entitled to points under either Part, Part 6D.5 does not apply.

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 at least 12 months in the immediately preceding 48 months. The applicant has not claimed to have completed a professional year as defined and did not provide any evidence of having done so. Therefore, the applicant is not entitled to 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 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.

1. Engineering Australia is the relevant assessing authority for the nominated occupation of Telecommunications Engineer. The applicant provided details on the visa application form that he had obtained a Skills Assessment from TRA dated 12 July 2016. He provided a copy of the skills assessment which states that his qualification obtained from Sir Syed University of Engineering & Technology and awarded by in March 2010 has been assessed as comparable to the Australian Qualification Framework (AQF) level of Bachelor Degree for the purposes of awarding points under the General Skilled Migration points test. While not expressly mentioned in the assessment, it appears to refer to the Bachelor of Science in Electronic Engineering qualification conferred on 27 March 2010.

1. The Tribunal acknowledges that the delegate found that the applicant was entitled to 15 points under this part. But, having regard to the Country Education Profile (CEP) on Pakistan maintained by the Department of Education, Skills and Employment, Sir Syed University of Engineering & Technology, Pakistan is a Section 2 educational institution. According to the CEP, a Bachelor Degree qualification issued by a Section 2 educational institution could range from being comparable to a Diploma qualification, Associate Degree or Bachelor degree under the Australian Qualifications Framework. For a four year, full-time degree in a Section 2 institution, the program and/or institution needed to have been accredited by a professional council or a ‘HEC accreditation council with a rating of W or X (where ratings are used)’. There was no evidence before the Tribunal regarding this, so additional information was requested as to whether the applicant’s qualification is of a recognised standard as defined.

1. Following the request, the Tribunal was informed that the applicant had applied to VETASSESS to provide further information regarding whether or not the degree is comparable to an Australian Degree. The applicant sought further time to submit the assessment from VETASESS. The Tribunal had agreed to extend the time on a number of occasions, the last of which sought a response or update by 13 February 2023. The representative provided an outcome from VETASSESS dated 30 January 2023 which advises that the Bachelor of Science in Electronic Engineering completed in 2009 at Sir Syed University of Engineering & Technology, Pakistan is recognised by VETASSESS for the purpose of awarding points for qualifications under the General Skilled Migration points test as comparable to the educational level of an AQF Bachelor degree. The Tribunal finds that the applicant’s qualification is of a recognised standard and he is thus entitled to 15 points under this part.

Part 6D.7A – Specialist educational 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 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 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.

1. The applicant confirmed that he had studied for a masters degree at University of Wollongong by coursework. Furthermore, he confirmed that his studies were completed in 2019, which is after the invitation to apply was issued. As there is no evidence that the applicant had, at the time of invitation, met the requirements for the award, by an Australian educational institution, of a masters degree by research, or a doctoral degree, the applicant is not entitled to 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 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.

1. The applicant provided details on the visa application form that he was undertaking study at UOW. He confirmed at the hearing that it had not been completed at the time of invitation. As the Australian study requirement had not been met at the time of invitation, the applicant is not entitled to 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. The applicant is not claiming points under this part and there is no evidence that he is entitled to points under this part.

Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area 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 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 did not meet the Australian study requirement at the time of invitation to apply for the visa for the reasons set out above in Part 6D.8. Therefore, he does not meet the requirements under paragraph (a) of this part and he is not entitled to points under this part.

Part 6D.11 – Partner qualifications

1. Ten points may be awarded under this Part if the applicant does not have a spouse or de facto 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.

1. It was submitted that the applicant does not have a spouse or de facto partner and was therefore entitled to 10 points following the insertion of item 6D112. Item 6D112 was inserted effective from 16 November 2019 and appears to apply to applications that were made before but not finally determined at that date. Despite the written submissions suggesting otherwise, when asked at the hearing the applicant advised that he had married earlier in the year. He confirmed that his wife is not an Australian citizen or permanent resident and they were currently residing in Canada, having recently been granted permanent visas. She is not

an applicant for the same visa subclass. Given this, the Tribunal indicated that it did not appear that he was entitled to points under this Part. The applicant referred to having not had a spouse or de facto partner when the application was made. However, the Tribunal is of the view that for points to be awarded under this part, it is his current marital status which is relevant as the Tribunal is to assess his entitlement to points under each Part of Schedule 6D at the time of its assessment. The items as inserted in this Part regarding not having a spouse or de facto partner do not expressly refer to a point in time prior to the Tribunal’s assessment, such as “at the time of invitation to apply” which is used in other items under this part, and other parts of Schedule 6D.

1. Given that he is now married, it appears that the applicant is not entitled to points under this part as initially submitted. The evidence reflects that the applicant is not entitled to points under this part.

Part 6D.12 – State or Territory nomination qualifications

1. 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 not invited to apply for a Subclass 190 visa. Therefore, the applicant is not entitled to points under this part.

Part 6D.13 – Designated area 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. The applicant was not invited to apply for a Subclass 489 visa and he is 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  10 points

6D.3 - Overseas employment experience  0 points

6D.4 - Australian employment experience  0 points

6D.5 - Aggregated employment  NA

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 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  55 points

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

1. At the time of the delegate’s assessment the pass mark was 60 points. Therefore, the applicant has not achieved the qualifying score to pass the points test.

1. There has not been any relevant changes to the Regulations or pass mark at the time of the Tribunal’s decision which would change the score achieved by the applicant as determined above. As the applicant’s score on review is less than the qualifying score, the applicant does not satisfy cl 189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

DECISION

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

Wan Shum Member